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 1928-09

Wingate v. . Causey , 196 N.C. 71 ( 1928 )


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  • Civil action to recover on a $400 check given to plaintiff by defendant, 3 February, 1922, "for value received," which went to protest.

    In defense it was alleged, and there was evidence tending to show, that the check in question, which was post dated, represented the purchase price of a team of mules or horses, but was not to be used unless defendant sold said team for cash; otherwise, if sold on time, the check was to be taken up with good paper, which defendant says was offered, and, while first refused, was later reduced to judgment and assigned to plaintiff's principal by agreement, in settlement of said check.

    Defendant also set up a counterclaim for malicious prosecution, in that, it is alleged, plaintiff wrongfully and maliciously had him arrested and arraigned before the Superior Court of Wilson County for uttering a worthless check.

    From a judgment sustaining a demurrer to the counterclaim, and holding that the evidence offered in defense of plaintiff's claim was not sufficient to defeat a recovery, defendant appeals, assigning errors. after stating the case: We think the evidence offered in defense of plaintiff's claim was sufficient to carry the case to the jury, and that the court erred in rendering judgment on the defendant's *Page 72 admission that he issued the check held by plaintiff. The credibility of such evidence, however, is for the jury to determine. Evans v. Cowan,194 N.C. 273, 139 S.E. 434.

    But as it is not alleged that the criminal prosecution, which forms the basis of defendant's claim for damages for malicious prosecution, terminated in favor of the defendant, there was no error in sustaining the demurrer to the counterclaim. Winkler v. Blowing Rock Lines, 195 N.C. 673,143 S.E. 213; Carpenter v. Hanes, 167 N.C. 551, 83 S.E. 577. Three things must be alleged and proved in an action for malicious prosecution: (1) malice, (2) want of probable cause, and (3) termination of proceeding upon which the action is based. R. R. v. Hardware Co.,138 N.C. 174, 50 S.E. 571.

    Error.