Bronson, J.
Statement. — This is an action for malicious prosecution. The jury returned a verdict of $2,200 in plaintiff’s favor. The defendants have appealed from the judgment entered and the order denying a judgment non obstante, or, in the alternative, a new trial. The facts are substantially as follows:
The plaintiff was employed as the grain buyer and agent of the defendant company, in charge of its elevator, coal, feed, and grain business at Kramer, North Dakota, for about thirteen months from July, 1917 until August, 1918. He was hired at a salary of $60 per month with the understanding, as plaintiff claims, that he was to receive $15 per month extra if he remained in the employment for a year, and, as the defendant claims, $15 per month if he so remained and performed his services satisfactorily. Plaintiff’s school education did not extend beyond the third grade. He was poorly versed in bookkeeping. Formerly, he had worked on a farm as a laborer and for a time had operated [497] a pool room in Kramer. In August, 1918, upon cheeking plaintiff’s business at Kramer the representative of the defendants reported a shortage of approximately $676. This shortage, as reported, consisted of the difference between receipts of wheat and rye, and shipments made; the difference between receipts of corn and millet, and sales made; and the difference between the coal received, determined by the dockage weights in Minnesota upon shipments, and the sales, thereof made and the amount on hand remaining, determined by measurement of the bin. This total shortage also included a report upon “sales collected for and undeposited,” amounting to $171.57 and a flour shortage of $3.85. Tn connection with this shortage the plaintiff was credited with an overage, figured likewise with reference to the grain, upon flax, oats and barley amounting to $67.86. The superintendent of the defendant company visited Kramer and the plaintiff and this superintendent made efforts towards collecting upon accounts owing. Some moneys were collected upon these accounts, but there still remained a difference or balance of some $180. Concerning this amount, as the plaintiff testified, he told the superintendent that he did not want to collect such accounts because he owed the parties private debts and had promised them that he was expecting money from the elevator company at the end of the year with which he was going to pay their accounts to the company. It appears that the plaintiff became indebted to various customers of the defendant company upon his personal accounts, such as for rent, for hay, etc. Plaintiff made various sales to such customers of the defendant with the understanding that he would pay such accounts to the company and thus offset his own indebtedness to such customers.
A day book was kept as well as a ledger in which entries were made of sales including the charge accounts and the same were posted into the ledger. These items were rather imperfectly kept. In the ledger appear items of credit to certain customers for indebtedness owing upon merchandise received by the plaintiff. The plaintiff testified that he reported the sales to the company. The amount of plaintiff’s money shortage was determined by deducting from the record the total sales made by the plaintiff and the amount of cash remitted by the plaintiff. The representative of the defendant company made various attempts [498] to secure settlement of the shortage reported. The plaintiff was re-' 'quested to raise the necessary amount of money to cover the shortage from among his friends. The bonding company upon the plaintiff’s bond urged immediate payment of the shortage, in amount, stated to be $670.80. The superintendent of the defendant was urged by this bonding company to take action against the plaintiff by filing information if he failed to fix the matter up. The bonding company stated that they believed an example should be made of some of these fellows who converted other people’s money to their own use. Not securing a settlement from the plaintiff, the superintendent of the defendant visited the state’s attorney and stated to him the facts of the shortage and signed a criminal complaint charging the plaintiff with the felonious appropriation of money amounting to $171.57. Upon September 23, 1918, the plaintiff was accordingly arrested and brought before a justice of the peace. Upon failure to give bond he was committed into the custody of the sheriff. Within four days thereafter he was released upon furnishing bail in the sum of $1,000. On September 26; 1918, the superintendent of the defendant wrote a letter to the plaintiff to the effect that he would not spend any more time trying to help him and that unless he made settlement in full with him, expenses included, before October 9, he woiild push the case to the limit and that “nothing goes except the cash.” On October 9, 1918, the preliminary hearing was held, and the plaintiff, waiving examination, was bound over to the district court. Thereafter, in March, 1919, upon trial of the criminal action, the plaintiff w'as acquitted. This action for maliciotts prosecution has resulted. The record is voluminious; the exhibits extensive. Much evidence was introduced which concerned the method by which plaintiff conducted the business of the defendant and maintained its books. Much testimony, likewise, was adduced on the part of the defendant, in an effort to show that the plaintiff was guilty of embezzlement of the company’s property through the manner in which he had conducted this business. No attempt will be made to detail such evidence in its various aspects.
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Bronson, J.
Statement. — This is an action for malicious prosecution. The jury returned a verdict of $2,200 in plaintiff’s favor. The defendants have appealed from the judgment entered and the order denying a judgment non obstante, or, in the alternative, a new trial. The facts are substantially as follows:
The plaintiff was employed as the grain buyer and agent of the defendant company, in charge of its elevator, coal, feed, and grain business at Kramer, North Dakota, for about thirteen months from July, 1917 until August, 1918. He was hired at a salary of $60 per month with the understanding, as plaintiff claims, that he was to receive $15 per month extra if he remained in the employment for a year, and, as the defendant claims, $15 per month if he so remained and performed his services satisfactorily. Plaintiff’s school education did not extend beyond the third grade. He was poorly versed in bookkeeping. Formerly, he had worked on a farm as a laborer and for a time had operated [497] a pool room in Kramer. In August, 1918, upon cheeking plaintiff’s business at Kramer the representative of the defendants reported a shortage of approximately $676. This shortage, as reported, consisted of the difference between receipts of wheat and rye, and shipments made; the difference between receipts of corn and millet, and sales made; and the difference between the coal received, determined by the dockage weights in Minnesota upon shipments, and the sales, thereof made and the amount on hand remaining, determined by measurement of the bin. This total shortage also included a report upon “sales collected for and undeposited,” amounting to $171.57 and a flour shortage of $3.85. Tn connection with this shortage the plaintiff was credited with an overage, figured likewise with reference to the grain, upon flax, oats and barley amounting to $67.86. The superintendent of the defendant company visited Kramer and the plaintiff and this superintendent made efforts towards collecting upon accounts owing. Some moneys were collected upon these accounts, but there still remained a difference or balance of some $180. Concerning this amount, as the plaintiff testified, he told the superintendent that he did not want to collect such accounts because he owed the parties private debts and had promised them that he was expecting money from the elevator company at the end of the year with which he was going to pay their accounts to the company. It appears that the plaintiff became indebted to various customers of the defendant company upon his personal accounts, such as for rent, for hay, etc. Plaintiff made various sales to such customers of the defendant with the understanding that he would pay such accounts to the company and thus offset his own indebtedness to such customers.
A day book was kept as well as a ledger in which entries were made of sales including the charge accounts and the same were posted into the ledger. These items were rather imperfectly kept. In the ledger appear items of credit to certain customers for indebtedness owing upon merchandise received by the plaintiff. The plaintiff testified that he reported the sales to the company. The amount of plaintiff’s money shortage was determined by deducting from the record the total sales made by the plaintiff and the amount of cash remitted by the plaintiff. The representative of the defendant company made various attempts [498] to secure settlement of the shortage reported. The plaintiff was re-' 'quested to raise the necessary amount of money to cover the shortage from among his friends. The bonding company upon the plaintiff’s bond urged immediate payment of the shortage, in amount, stated to be $670.80. The superintendent of the defendant was urged by this bonding company to take action against the plaintiff by filing information if he failed to fix the matter up. The bonding company stated that they believed an example should be made of some of these fellows who converted other people’s money to their own use. Not securing a settlement from the plaintiff, the superintendent of the defendant visited the state’s attorney and stated to him the facts of the shortage and signed a criminal complaint charging the plaintiff with the felonious appropriation of money amounting to $171.57. Upon September 23, 1918, the plaintiff was accordingly arrested and brought before a justice of the peace. Upon failure to give bond he was committed into the custody of the sheriff. Within four days thereafter he was released upon furnishing bail in the sum of $1,000. On September 26; 1918, the superintendent of the defendant wrote a letter to the plaintiff to the effect that he would not spend any more time trying to help him and that unless he made settlement in full with him, expenses included, before October 9, he woiild push the case to the limit and that “nothing goes except the cash.” On October 9, 1918, the preliminary hearing was held, and the plaintiff, waiving examination, was bound over to the district court. Thereafter, in March, 1919, upon trial of the criminal action, the plaintiff w'as acquitted. This action for maliciotts prosecution has resulted. The record is voluminious; the exhibits extensive. Much evidence was introduced which concerned the method by which plaintiff conducted the business of the defendant and maintained its books. Much testimony, likewise, was adduced on the part of the defendant, in an effort to show that the plaintiff was guilty of embezzlement of the company’s property through the manner in which he had conducted this business. No attempt will be made to detail such evidence in its various aspects.
It is undisputed in the record that the company defendant made a mistake in listing the corn shortage against the plaintiff; that in such shortage he was both improperly charged as to weights concerning the corn and also concerning certain corn that was spoiled in shipment [499] and otherwise. There appears evidence on the part of the plaintiff’s witness to the effect that whatever shortage occurred in the handling of the grain, or flour, was incidental to the operation of the company’s business, and likewise the overage that accrued. There is evidence concerning the accounts to the effect that the plaintiff did give credit to various customers for property of the company, delivered to them, with the understanding that he would apply his indebtedness to such customer’s accounts and pay the company. There is evidence also on the part of the plaintiff that he was not paid this $15 per month bonus and was not paid for the two weeks that he worked in August. On the part of the defendant there is evidence to the effect that the plaintiff made some of these sales to customers and made some settlements without accounting to the company upon such settlement wdth such customers. That he did use some coal and some flour wdthout accounting therefor to the company. That he made admissions that he was short and that he turned over his salary to the plaintiff with reference to his shortage. There is also evidence on the part of the defendants to the effect that they made full and complete statement of the facts to the state’s attorney; that in causing the arrest they acted without malice and upon grounds of probable cause pursuant to the requirements of the bond existing between the company and the bonding company. There is also evidence to the effect that the plaintiff did not keep correct and proper accounts of sales made and did not list fully sales for cash or sales on credit, and that the books of the company as kept by the plaintiff showed distinctly a shortage on the part of the plaintiff. Plaintiff on the other hand offered evidence in contradiction of such evidence.
Decision. — The defendants contend principally that the record discloses, as a matter of law, absence of malice, probable cause, and a full statement made of the facts and circumstances of plaintiff’s shortage to the state’s attorney. Tt is also contended that the verdict is excessive. This court has heretofore held that malice may be inferred by the jury from want of probable cause. Kolka v. Jones, 6 N. D. 461, 66 Am. St. Rep. 615, 71 N. W. 588. That probable cause becomes a. question of law alone when the facts are undisputed and then only when the record discloses that the plaintiff acted in the belief that he had probable cause. Ibid.; Comeford v. Morwood, 34 N. D. 276, 158 N. W. 258. This court has further held that one who seeks to rely upon the [500] advice of counsel as defense must show that he communicated to such counsel all of .the facts within his knowledge and all that he could ascertain with reasonable diligence and inquiry and that he acted on the advice received, honestly and in good faith, in causing the arrest. Merchant v. Pielke, 10 N. D. 48, 84 N. W. 574. In connection with these contentions the defendants maintain that the evidence in the record, including particularly admissions made by the plaintiff, demonstrate that the plaintiff was guilty of embezzling the company’s property and that this shows affirmatively the existence of probable cause for the prosecution maintained. Wo are unable to adopt defendants’ contentions in this regard. The gist of plaintiff’s action, after proof that the criminal prosecution terminated in his favor, was to establish that such prosecution was malicious, without probable cause, and resulted in his damage. Ibid. The questions therefore in this dispute in the evidence were sufficient to form a question of fact for the jury. Likewise, there exists a dispute concerning the facts and circumstances that the defendants’ representative knew, or that, in the exercise of reasonable diligence, he ought to have known when he made the statement to the state’s attorney, and, accordingly, the question of whether the defendant communicated all the facts within his knowledge or all that he should have ascertained with reasonable diligence and inquiry, were questions of fact for the jury. The trial court fairly submitted thees questions to the jury. The findings thus made by the jury do not warrant this court, upon this record, in determining, as a matter of law, that there existed neither malice nor want of probable cause.
The damages awarded appear large. There is evidence, however, that the plaintiff, in the defense of the criminal action, incurred expenses aggregating $650. The trial court properly instructed concerning the questions of damages. The aAvard of damages Avas peculiarly for the determination of the jury, in the exercise of a reasonable and sound discretion, unless the record discloses the influence of passion, partiality, or prejudice. We are not prepared to hold, as a matter of law, that the record so discloses. Ann. Cas. 1916C, 251; Merchant v. Pielke, supra. The judgment and order are affirmed with costs to the respondent.
[501] Giiristxanson and Biedzbil, JJ., concur.