Auld v. Colonial Stores Inc. , 76 Ga. App. 329 ( 1947 )

1. (a) "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." Code, § 105-801.

(b) "Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused." Code, § 105-802.

(c) "A total want of probable cause is a circumstance from which malice may be inferred, but such inference may be rebutted by proof." Code, § 105-804.

(d) "The recovery shall not be confined to the actual damage sustained by the accused, but shall be regulated by the circumstances of each case." Code, § 105-808.

2. (a) Where a check was drawn on a given bank by one having funds in such bank to pay the check if presented promptly in due course, and the entries on the back of the check showed that it was not presented for payment until the elapse of two months, it being drawn on a bank in the same town, the agent of a collecting agency attempting to collect the check — having the check, in his possession and making an affidavit for a criminal warrant charging the drawer of the check with being a cheat and swindler, without making any investigation to determine whether or not there were funds to the credit of the drawer of the check in the bank to pay the same if presented promptly in due course — cannot be said as matter of law to have probable cause to believe that the drawer of the check was a cheat and swindler. See Coleman v. Allen, 74 Ga. 637 (1) (5 S.E. 204, 11 Am. St. Rep. 449).

(b) This rule obtains, notwithstanding the fact that the attorney for the plaintiff may have urged the president and manager of the Merchants' Protective Association to continue with the prosecution by making the affidavits and taking out the accusation, the attorney telling him that he intended to bring suit for malicious prosecution.

(c) Where such agent at the committal hearing on such warrant heard the cashier of the bank testify that the bank held funds to the account of the drawer to pay such check if presented promptly in due course, and thereafter made affidavit that such check was uttered by the drawer knowing that he did not have sufficient funds in such bank for the payment of such check upon presentation, such affidavit being made to form the basis of a criminal prosecution, and then signed an accusation based thereon as prosecutor in a criminal court, and then appeared at the trial thereof as prosecutor — it cannot be said as a matter of law that such prosecutor acted with probable cause to believe that the drawer of the check was guilty of the offense charged.

(d) On the other hand where, in an action for malicious prosecution, the undisputed evidence disclosed the facts outlined in subparagraphs (a), (b), and (c) of this headnote, such prosecutor as a matter of law acted without probable cause, and the case should have been submitted to the jury under Code § 105-802.

(e) This rule obtains, notwithstanding the committing magistrate bound the accused over at the committal hearing to answer to the charge set out in the affidavit and warrant described in paragraph (a) of this headnote (see Darnell v. Shirley, 31 Ga. App. 764, 122 S.E. 252), because, even if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.

(f) Where it appears from the undisputed evidence that the prosecutor wrote the plaintiff in a suit for malicious prosecution that he would swear out a warrant, "causing a lot of embarrassment and an additional cost," if the plaintiff did not pay the demand, the obvious purpose was the collection of a debt, and is evidence of the want of probable cause (see Bigelow v. Sickles, 80 Wis. 98, 49 N.W. 106, 27 Am. St. Rep. 25), which should be submitted to the jury.

3 (a) Malice may be inferred from the want of probable cause. Where the announced object of the criminal prosecution is to embarrass the accused and put him to additional cost if a certain payment is not made, malice may be inferred therefrom, and where there is a want of probable cause of the guilt of the accused, such object within itself raises a question of fact to be passed upon by the jury. It may be inferred from this effort to collect a debt that the criminal prosecution was maliciously carried on, and a jury would be authorized so to find.

(b) Malice may consist of a general disregard of the right and consideration of mankind, directed by chance against the individual injured. Darnell v. Shirley, supra. Where the prosecutor by the use of slight diligence could have known that there was no probable cause for making the affidavit forming the basis of the criminal prosecution, the circumstances raised a question of fact to be passed upon by the jury, since malice may be inferred from facts and circumstances of the case.

(c) While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.

4. Where the president and general manager of a corporation, whose business it is to collect bad checks for clients, is in charge of the business of the company and is vested with discretion as to the ways and means by which he shall proceed to make such collection, and frequently employs the method of swearing out criminal warrants against the makers of such checks as a part of the regular course of the business of his company in making collections and not in furtherance of his own business, the same is for the sole benefit of his company, and where such president and general manager makes affidavit in connection with such a check held for collection by said company and carries on a criminal prosecution by signing the accusation, the corporation is bound by this conduct, because the corporation can act only through its agent, and will be held to have approved this general course of conduct on the part of its president and general manager. It was a question of fact in the instant case, to be determined by the jury, whether or not defendant corporation, Merchants' Protective Association, had approved such course of conduct so as to bind it with and to make it liable for such conduct. See Davison-Paxon Co. v. Norton, 69 Ga. App. 77 (24 S.E.2d 723).

5. In cases where the agent is employed to procure the payment of a debt, the general rule is that the authority conferred upon the agent to collect a debt does not imply authority to cause an arrest so as to render the principal liable in an action for malicious prosecution, in the absence of ratification or adoption of the agent's act. Held, applying this rule to the evidence in the instant case, the judge did not err in granting a nonsuit as to Colonial Stores Inc. GARDNER and TOWNSEND, JJ., dissent from the ruling in this headnote.

6. When a petition is not demurred to, and is proved as laid without at the same time disproving the plaintiff's right to recovery, the award of a nonsuit is error. See Clark v. Bandy, 196 Ga. 546 (27 S.E.2d 17), and cases there cited.

7. Where one who had sufficient funds on deposit in a bank to pay a check drawn against the account, if presented promptly, is prosecuted for the offense of violating the bad-check laws and is acquitted, and then brings an action against the prosecutor for malicious prosecution, and offers in evidence a check on another, proffered in settlement of the civil liability after the prosecution was begun but before it ended, it is not inadmissible in evidence upon the grounds that the latter check did not constitute legal tender, that it was not in a sum sufficient to pay the principal and accrued interest, and that the indorsement prevented it from being an unconditional tender, and the court did not err in admitting it over these objections. Such check is admissible in evidence for the purpose of throwing light on the question of whether or not there was malice on the part of the prosecutor, for whatever probative value the jury might see fit to give it.

DECIDED OCTOBER 29, 1947. ADHERED TO ON REHEARING DECEMBER 18, 1947. William Auld, the plaintiff, brought a petition in the Superior Court of Fulton County, Georgia, against the defendants for malicious prosecution. Briefly stated, the facts are: On January 15, 1943. William Auld went to one of the Atlanta stores of Colonial Stores Inc., and purchased certain groceries. He lacked three cents of having enough money to pay the bill, so he wrote a check for the sum of $1, which was accepted by the store.

This check was drawn on the Southside Atlanta Bank, a banking institution located in Atlanta. For some reason this check was not deposited and presented for payment until March 18, 1943, which was more than two months after it was accepted. It was evidently deposited in Fulton National Bank and by it presented through the Atlanta Clearing House on March 19, 1943, for payment. Payment upon the check was then refused because of insufficient funds.

If the check had been presented without delay, it would have been paid by the Southside Atlanta Bank, because there were sufficient funds on hand at that time to the credit of the maker of the check to pay the same. The cashier of the bank testified that, had the check been presented at any time through January 20, 1943, there would have been sufficient funds on hand to pay it.

Upon nonpayment because of the lack of sufficient funds in March, 1943, Colonial Stores Inc., one of the defendants, turned the check over to Merchants' Protective Association, another one of the defendants, for collection, the third defendant, V. D. Young, being the president and manager of the Merchants' Protective Association.

Merchants' Protective Association is a corporation organized for the purpose of making such collections and performing other services for its members, Colonial Stores Inc. being one of its members, and this check having been delivered to the Association by Colonial Stores Inc. in accordance with its prior arrangement and agreement that such checks would be delivered to the association for collection. For this service the association was paid a membership fee.

Upon receiving the check from Colonial Stores Inc., the president and manager of the association then ascertained from the Southside Atlanta Bank that there were not sufficient funds at that time on deposit to the credit of the maker to pay the check. He then wrote a letter to the maker of the check demanding immediate payment within a period of five days, stating in the letter that, if the same was not paid within the time specified, a warrant would be taken against the maker of the check, and that it would cause him a lot of embarrassment and additional cost.

The maker of the check having failed to pay the same as directed in the letter, contending that he had not received the same within the time specified, the president of the Association, V. D. Young, took out a criminal warrant against the defendant, charging him with being a common cheat and swindler; the affidavit therefor being executed on April 27, 1943. The accused was arrested on the charge and brought before the criminal court, and after hearing the court bound him over to answer to the charge and required him to give bond in the sum of $100, or else be committed to jail. This occurred on April 30, 1943.

On June 22, 1943, the defendant, V. D. Young, made an affidavit in the Criminal Court of Fulton County as a basis for criminal prosecution, in which he swore that the plaintiff, William Auld, did utter, make, and deliver the check to Colonial Stores Inc., trading as Little Star Store, knowing at the time of such making, drawing, uttering, or delivering of such check, that he, W. M. Auld, did not have sufficient funds in, or credit with, the Southside Atlanta Bank for the payment of said check upon its presentation, and that the check was presented for payment and the same was not paid by the Southside Atlanta Bank.

Young then signed an accusation in the Criminal Court of Fulton County, charging William Auld with the same offense, Young having signed the same as prosecutor.

He testified that he had been urged to continue the prosecution, and to prosecute the said Auld by accusation in the Criminal Court of Fulton County, by the attorney for the said Auld. The attorney told him that he would be sued by Auld for malicious prosecution. The manager of the Little Star Store appeared in the case and testified against the defendant. The case came on to be heard, and the defendant, Auld, was acquitted of the charge.

Auld then brought this action against the various defendants named, seeking to recover damages, alleging that the facts stated constituted a malicious prosecution, for which the defendants were liable in damages.

He alleged that the defendant Young was agent for the other two defendants, and for that reason the other two defendants were liable also for damages.

Young testified that he received a salary from his employer, that his employer received a fixed membership fee from Colonial Stores Inc., and that the procedure followed in this case was the usual procedure which had been followed over a period of years in making such collection for Colonial Stores Inc., and that Colonial Stores Inc. had been accepting funds so collected over a period of years. He also testified, that — while he had instructions from Colonial Stores Inc. and Merchants' Protective Association not to issue criminal warrants in cases of this character — as president and general manager of Merchants' Protective Association, which in turn acts as collecting agency for Colonial Stores Inc., he gave himself these instructions; that in this case as in frequent other cases he saw fit to violate these instructions; that, on other occasions when he had issued criminal warrants in order to collect checks for Colonial Stores Inc., the same was done without the knowledge or consent of any officer or agent of said corporation.

The plaintiff contends that, even if Colonial Stores Inc. was not originally liable for the alleged tort, it ratified the same and became liable when its manager of the store and other employees appeared at the trial of the case and participated therein against the plaintiff.

At the conclusion of the evidence, the trial court granted a nonsuit in favor of each of the defendants, and it is to this grant of a nonsuit that the plaintiff in error excepts and assigns error.

The defendant, Colonial Stores Inc., by cross-bill of exceptions, assigns error on the ruling of the court admitting in evidence, over objections on grounds hereinafter set out, a check drawn upon another, proffered in settlement of the civil liability after the criminal prosecution was begun, but before it ended. 1. The first headnote is a statement of a portion of the statutory law on the question of suits for malicious prosecution, and needs no elaboration.

2. Where there is probable cause, a suit for malicious prosecution cannot be maintained. Our Code ( § 105-802), provides that the want of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. But this is not exhaustive of all the instances of probable cause. Coleman v. Allen, 79 Ga. 637, 642 (5 S.E. 204). It has been held by the courts of last resort in many of the States that probable cause does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution, and that the reasonable and probable cause must appear to have existed in his mind at the time of his proceeding. 18 R.C.L. 37. The court approves this view in Coleman v. Allen, supra, adding on pages 640 and 642 of the opinion that probable cause is that apparent state of facts which seems to exist after reasonable and proper inquiry, and recognizes the duty of caution and avoidance of haste.

The burden of proving the want of probable cause is on the plaintiff. Sykes v. Southside Atlanta Bank, 53 Ga. App. 450,452 (186 S.E. 464). And where he introduces sufficient evidence to infer a want of probable cause, the case should be submitted to the jury on this point, provided there is sufficient evidence to carry the case to the jury on the question of malice.

In the instant case the prosecutor in the criminal proceedings had in his possession the check upon which the prosecution was based. This check showed upon its face that it was not promptly presented for payment, and that a period of two months had elapsed between the time when the check was drawn and the time it was presented for payment. The very lapse of time put this prosecutor upon notice that there may have been funds in the bank out of which the same would have been paid had it been presented promptly.

Therefore, before charging the person who drew the check with uttering and passing a check drawn on a bank in which he did not have and knew he did not have sufficient funds, or credit, to pay the same upon presentation, any reasonable man, under such circumstances, would have made proper inquiry. This inquiry would have eliminated the possibility of probable cause in this case. This want of proper diligence resulting in the want of probable cause is emphasized by the letter to the maker of the check stating that the prosecutor would take out a criminal warrant against such maker for the purpose of causing him embarrassment and increasing the cost to him unless he paid the check.

The fact that the magistrate before whom the accused was brought when he was arrested upon the warrant bound the accused over to answer to the charge made in the warrant does not ipsofacto establish that probable cause existed for making the affidavit and causing the warrant to be issued, but, at most, was only prima facie evidence, which may be rebutted. See Darnell v. Shirley, Sykes v. Southside Atlanta Bank, supra. This prima facie evidence could be rebutted either by direct or circumstantial evidence. That it was successfully rebutted in this case is conclusively established by the evidence of the prosecutor himself, and without dispute, when he admitted that he saw the bank's statements which were introduced in evidence at the committal hearing, and heard the evidence of the bank cashier, to the effect that there were sufficient funds in the bank to pay the check at the time it was drawn and delivered to the payee, and for several days thereafter, and would have been paid had it been presented promptly.

Notwithstanding these facts, the prosecutor thereafter made an affidavit as a basis for a criminal prosecution charging the same offense, signed the accusation as prosecutor, and personally prosecuted the case in the criminal court. The jury should decide whether this constitutes the want of probable cause.

The defendants seek to avoid this result by suggesting that counsel for the plaintiff after the committal hearing requested the prosecutor to proceed with the prosecution. But an examination of the record discloses that counsel in effect told the prosecutor that the accused would sue the prosecutor for malicious prosecution upon a favorable termination of the case (a prerequisite to such a suit), and suggested to the prosecutor that he proceed so that such a suit could be brought. Instead of encouraging the ordinary person to continue with the prosecution, this would have prevented it.

The record does not disclose such facts as to estop the plaintiff, or to constitute a waiver, or to amount to a consent to the prosecution.

3. Malice may be inferred from want of probable cause. This inference is one of fact to be drawn by a jury. The letter written by the prosecutor to the accused, in which it was stated that the prosecutor would cause a warrant to issue against the accused to his embarrassment and added cost if a certain payment was not made, announced an ulterior motive for the prosecution and raised a strong inference of malice. This, too, is an inference of fact to be drawn by a jury.

The fact that the prosecutor continued with the prosecution after he knew that the accused was not guilty of the offense charged, and his other conduct, raised an inference of fact that the prosecutor acted with a malicious design. Although he stated that his design was to deter others, the only method by which the sincerity of this declaration can be tested is the surrounding circumstances throwing light upon the motive. How the prosecutor expected to deter others by a case that the accused was certain to win is not disclosed by his evidence or the apparent facts. Now, it could be that he expected to deter others by demonstrating to them how completely embarrassed they might become in winning the case, and how much it might cost them in time, in worry and trouble defending it, and in cost of attorneys fees, etc., even though they should win. But the jury would be justified in finding that this kind of determent was within itself a malicious prosecution. It follows that malice may consist of a general disregard of the right and consideration of mankind, or a portion of society, directed by chance against the individual injured. See Darnell v. Shirley, supra.

4. Headnote 4 needs no elaboration.

5. A majority of the court, SUTTON, C. J., MacINTYRE, P. J., FELTON, AND PARKER, JJ., are of the opinion that the judge did not err in granting a nonsuit as to Colonial Stores Inc. They state: The undisputed evidence of Victor D. Young was: "I did not take out this warrant and this accusation in behalf of the Colonial Stores; I took it out in my own behalf. . . In this specific instance about this one check, I did not have any instructions from anybody to take out a warrant, or do anything to collect it. The check came in the usual course and channel of trade as other checks come from them. It is not my usual custom when checks are not paid to take out a warrant. . . I am also president of Merchants' Protective Association. I gave instructions as president and manager of the Merchants' Protective Association as to the collection of checks from Colonial Stores; and those instructions are not to take any warrants on any checks without first being authorized by the company [The Colonial Stores Inc.]. The company did not in this instance authorize me to take a warrant. The company has never authorized me to take a warrant."

In Minter v. Southern Express Co., 153 N.C. 507 (69 S.E. 497), it was held that an express company is not liable for the wrongful acts of its agent at its office in a city, in charge of its business there, in causing the arrest of one for larceny from the office, unless it authorized or ratified the act.

It has been held that the chief secretary and treasurer of a corporation, having control and management of the receipt and disbursement of the funds of the company, cannot arrest a person for embezzlement in the name of the State so as to render the company liable for malicious prosecution. Gillett v. Missouri Valley R. Co., 55 Mo. 315 (17 Am. R. 653). It has also been held that an agent or servant entrusted with the goods or money of the corporation has not the implied authority to cause the arrest of a person for embezzlement so as to render the corporation liable for malicious prosecution or false imprisonment. Carter v. Howe Machine Co., 51 Md. 290 (34 Am. R. 311).

The general rule appears to be that the authority conferred upon an agent to collect a debt does not imply authority to cause an arrest so as to render the principal liable in an action for malicious prosecution, in the absence of ratification or adoption of the agent's act.

It has been said that the general rule is that every authority carries with it, or includes in it as an incident, all the powers which are necessary, proper, or usual as means to effectuate the purpose for which it was conferred; and that consequently, when an agency is created for a specific purpose or in order to transact particular business, the agent's authority by implication embraces the appropriate means and power to accomplish the desired end. He has not only the authority which is expressly given, but such as is necessarily implied from the nature of the employment. The doctrine of respondeat superior is a familiar one, but it has no application to the facts of the instant case. If we should hold that it is so broad in its scope as to include cases like this one, it would lead to most dangerous consequences. For us to say that an agent by his acts subjects his principal to liability in damages to one injured by his said acts done when he was not about his master's business, and that he had no express or implied authority to do them, would be carrying the doctrine of respondeat superior far beyond its acknowledged limits.

Even if Colonial Stores authorized Merchants' Protective Association to use all appropriate means to collect its claim, Colonial Stores would be liable and responsible for only the appropriate means used by the agent, and we certainly do not think that it can be said that a criminal prosecution is a means appropriate to the collection of a debt. Should we hold that Colonial Stores was responsible for the act of Merchants' Protective Association, it would be to hold that, when an authority to collect a debt is shown, the law will imply the authority to institute criminal prosecution against the debtor in case the debtor fails or refuses to pay.

The act of criminally prosecuting Auld was an act without the scope of the agency and cannot be brought within the limits of the implied authority of the agent.

"It is not intended to assert that a principal cannot be held responsible for the wilful or malicious acts of the agent, when done within the scope of his authority, but that he is not liable for such acts, unless previously expressly authorized or subsequently ratified, when they are done outside of the course of the agent's employment and beyond the scope of his authority, as when the agent steps aside from the duties assigned to him by the principal to gratify some personal animosity, or to give vent to some private feeling of his own (McManus v. Crickett, 1 East, 106), or, as is forcibly stated by Lord Kenyon in the case cited, quoting in part from Lord Holt: ``No master is chargeable with the acts of his servant but when he acts in the execution of the authority given him. Now, when a servant quits sight of the object for which he is employed, and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for his acts.'

"It may then be gathered from the books as a general rule, which is clearly applicable to the facts of this case, that if the servant, instead of doing that which he is employed to do, does something else, which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for what he does. It is not sufficient that the act showed that he did it with the intent to benefit or to serve the master. It must be something done in attempting to do what the master has employed the servant to do.'" Daniel v. Atlantic Coast Line R. Co., 136 N.C. 517 (48 S.E. 816, 67 L.R.A. 455, 1 Ann. Cas. 718).

The question here is: Can such acts on the part of Young be held to be within the scope of the agency and in the course of his employment? There may be, and the books recognize, some difficulty in determining what acts of an agent or employee are properly within the range and course of his employment, but to say that to put the criminal law in operation against a party on the charge here in question is within the scope of the agency and in the course of the agent's employment is a proposition which, in the light of decided cases, we do not think can be maintained.

"A principal is not put on notice of the unauthorized act of an agent by the mere knowledge of the agent of the acts he himself has done in excess of his authority." Newton v. GulfLife Ins. Co., 55 Ga. App. 330, 332 (190 S.E. 69).

We think that the rule laid down in 34 Am. Jur., Malicious Prosecution, 760, § 91, is applicable here: "The authority conferred upon an agent to settle accounts or collect a debt does not imply authority to cause an arrest, so as to render the principal liable in an action for malicious prosecution, in the absence of ratification of the agent's act."

There then remains only the question of whether Colonial Stores ratified or adopted the acts of Young. It seems that, when the defendant's attorney, subsequently to the swearing out of the warrant, offered his personal check to satisfy the debt, the undisputed testimony of Young is: "I told him [the attorney] I could not accept the check because the matter was in court. Judge Rosser would not allow me to accept it until the matter was disposed of by the court. I even went to Judge Rosser and asked him about it, and he said, ``Absolutely not, you cannot accept the check or withdraw the warrant.' Mr. Peck [defendant's attorney] contacted him then, and he refused."

There was no preliminary hearing at that time, and up to this time there is nothing in the record to show that Colonial Stores knew that the warrant had been sworn out, or a prosecution begun. The next day there was a preliminary hearing before Judge Rosser and the defendant was bound over on the alleged charge.

The testimony of Young was undisputed and showed: "The store manager was brought up there [to the preliminary trial] on subpoena, yes, sir; and he did appear and testify." There is on testimony that such manager heard the testimony of other witnesses or knew what they testified at such preliminary trial.

The plaintiff Auld was recalled and testified that A. M. Thompson, the manager of the Little Star Store where he gave the check, testified at the preliminary trial before Judge Rosser, and in so far as the record shows he merely identified the check in question as having come through his store. This is all the evidence of any ratification or adoption by Colonial Stores of the swearing out of the warrant or otherwise ratifying or adopting the prosecution which had been begun by Young. Thus, after Young, who was the agent of Colonial Stores to collect the debt, had sworn out a warrant, not only without the authority of Colonial Stores but against their express instructions, and Judge Rosser had instructed Young that he could not accept the check which had the conditions attached or withdraw the warrant, and thereupon the manager of Colonial Stores was brought in by a subpoena and identified the check — in short, there is no evidence in the record to show that Colonial Stores had anything to do with the prosecution of the criminal case, unless it be said that its manager, in obeying a subpoena and testifying at the preliminary hearing, was so doing. The record does not show that any of the officers or employees appeared in response to a subpoena or otherwise and testified at the subsequent trial in the Criminal Court of Fulton County where Auld was acquitted. However, the record shows that, after the preliminary trial, the defendant's attorney insisted that Young file the accusation and proceed to try the case, and threatened to go to the judge of the Criminal Court of Fulton County and make him, Young, do so. Later the solicitor of said court requested Young to sign the accusation, which he did; but the record does not show that Colonial Stores knew anything about this or any of the circumstances of the case after its manager testified at the preliminary hearing in response to a subpoena.

This case is different from those cases where an attorney at law is instructed to collect a note by a suit, in that it is then within the scope of his authority to sue out an attachment. Thus, the agent of Colonial Stores having acted beyond the scope of his employment, and Colonial Stores not having ratified or adopted such acts of the agent, Colonial Stores is not liable in an action for malicious prosecution, and the trial judge properly granted a nonsuit as to that defendant. Niebuhr v. PridgenBros. Co., 56 Ga. App. 668 (193 S.E. 597).

Even though the majority opinion is controlling in the case sub judice, GARDNER, J., and the writer are of the opinion that the trial judge erred in granting a nonsuit as to Colonial Stores Inc. (See dissenting opinion.)

6. When a petition is not demurred to, and is proved as laid without at the same time disproving the plaintiff's right of recovery, the award of a nonsuit is error. See Clark v.Bandy, 196 Ga. 546 (supra), and cases cited. In the instant case, issues of fact are raised as to the defendants, Young and Merchants' Protective Association, which should have been submitted to the jury.

7. By cross-bill of exceptions the defendant Colonial Stores Inc. contends that the court erred in permitting a check to be introduced in evidence. The record discloses that this check was signed by the attorney for the plaintiff and was tendered to Colonial Stores Inc. at the time of the committal hearing on the warrant charging the plaintiff with being a common cheat and swindler. This check was in the sum of $1 and was offered as payment of the civil liability of the accused to Colonial Stores Inc. The plaintiff contends that this check was offered to show his good faith. While the good faith of the plaintiff at the time the check was offered was irrelevant and immaterial, yet the court did not commit error in admitting the check over the objection that it did not constitute legal tender, that it was not in a sum sufficient to pay the principal and accrued interest, and the indorsement on the check prevented it from being an unconditional tender. While the check was not admissible on any of the grounds pointed out by these objections, it was admissible for another purpose. The accumulated interest on the check on which the prosecution was instituted was less than a cent and a half. Such check is admissible in evidence for the purpose of throwing light on the question of whether or not there was malice on the part of the prosecutor, for whatever probative value the jury might see fit to give it.

There being a dissent in the division of this court to which this case was originally assigned, the case was considered and decided by the court as a whole pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment reversed on the main bill of exceptions as todefendants V. D. Young and Merchants' Protective AssociationInc.; and affirmed on the cross-bill. All the Judges concur. Judgment affirmed on the main bill of exceptions as toColonial Stores Inc., Sutton, C. J., MacIntyre, P. J., Felton andParker, JJ., concur. Gardner and Townsend, JJ., dissent.