Opinion
October 5, 1906.
Frank Brundage [ William O. Miles with him on the brief], for the plaintiff.
Henry A. Prince [ Walter C. Flanders with him on the brief], for the defendant.
The action is for malicious prosecution. Prior to the time of his arrest the plaintiff had been for some months in the employ of the defendant as salesman and collector. The defendant was engaged in the manufacture and sale of sewing machines. At the time of the employment the plaintiff deposited with defendant the sum of $100, and there was issued to him a receipt therefor, which provided that this sum was to be held by the Singer Manufacturing Company as security for the honest and faithful performance of his duties as an employee of the company in whatever capacity employed, "such deposit being one of the conditions of the depositor's employment and being accepted by the said Company upon the conditions that neither the said deposit nor this certificate shall be transferable or negotiable in any manner, and that if the said depositor has performed his duties honestly and satisfactorily the said deposit will be returned to the said depositor on surrender of this certificate, six months after the termination of depositor's employment, and if said deposit is held for six months or more interest will be allowed thereon at the rate of three per centum per annum from the date of this certificate."
A week before July 17, 1903, the plaintiff claims to have discovered a case where the defendant's manager, a Mr. Wise, had sold a sewing machine, the sale of which the plaintiff supposed himself entitled to, and because he was deprived of the commissions of that sale he, therefore, laid his grievance before Mr. Wise and told him that he thought he would resign on account of such conduct. He testified that Mr. Wise then said: "If you don't want to stay you can collect up your security and go." The plaintiff then performed his duty as collector as theretofore, and on Friday, the seventeenth of July, had collected the sum of $110. He accounted for this sum to the bookkeeper by giving her a statement of all collections he had made during the week, and attached his certificate of deposit, or, as it was called, "the security certificate," and a ten-dollar bill, claiming that he was entitled to retain out of his collections the sum of $100 which he had theretofore deposited with defendant as security for the faithful performance of his duty. The bookkeeper insisted that he should pay the whole sum of $110 in cash, and demanded the $100 shortage from him. This he refused to deliver. Some four weeks after that he made an unsuccessful effort to collect from the defendant the sum of $19.80, which he claimed was still owing to him on another transaction by way of commission; the defendant refused to pay him, and he sued it in the Municipal Court.
Early on the morning of the day the summons in that suit was returnable, the plaintiff was arrested, charged with the crime of grand larceny upon information laid by the defendant's bookkeeper. After several adjournments the magistrate held the plaintiff to await the action of the grand jury. In December, 1903, the grand jury to which the matter was presented refused to indict, and on reconsideration the next day reached a similar conclusion. Another grand jury, in March, 1904, refused to indict, and this action was brought.
The question of probable cause should have been left to the jury. The statement of Mr. Wise to the plaintiff that if he did not care to stay, he might collect up his security and go, is fairly open to the construction that it was permission to the plaintiff to collect, in the course of his employment, an amount equal to the sum he had deposited theretofore with defendant as security for the faithful performance of his duties, and in that manner to reimburse himself. There was nothing in the terms of the certificate of deposit, or in the contract of employment, to prevent the defendant from waiving the advantage it might claim of keeping the deposit for six months after the termination of the plaintiff's employment; the possibility of such a waiver seems to have been contemplated by the parties, for it is provided in the certificate that "if said deposit is held for six months or more interest will be allowed thereon at the rate of three per centum per annum from the date of this certificate."
If, therefore, the company, through its agent, Mr. Wise, meant to give to the plaintiff permission to collect this $100 and keep it, there certainly was no larceny, and defendant had no reasonable ground to suppose that the plaintiff had been guilty of the crime of larceny, and no probable cause existed for the prosecution against the defendant.
It is objected by the defendant that there is no proof in the case that Mr. Wise had authority to waive the terms of the agreement of employment. Whether that is so cannot be important in the consideration of the case, for the terms of the certificate of deposit are not made a part of the contract of employment. In the latter, the plaintiff merely agreed "to give such a guarantee or security as shall be satisfactory to it (defendant) for the faithful performance of the terms of this agreement." Mr. Wise is described in the evidence as the manager of the Singer Manufacturing Company at their branch which was conducted at 1447 First avenue, in the city of New York. It was he who employed plaintiff in the first instance; the transaction in relation to the terms of the plaintiff's employment was conducted by him, and he seems to have had such complete domination over the affairs of his branch that he took to himself a postal card which came to the office for an order from a customer of the plaintiff's and sold the customer himself. He also had access to the part of the office which is behind the cashier's desk. We think the jury would have been justified from these facts in finding that the apparent authority of Mr. Wise extended to a waiver of the advantage which the defendant might insist upon of retaining plaintiff's deposit of $100 for six months after the termination of the plaintiff's employment.
We have considered the other objection raised by the defendant that the plaintiff has not proved a cause of action, but are of the opinion that the evidence in the record called for the presentation of the case to the jury and the plaintiff's exceptions are, therefore, sustained.
HIRSCHBERG, P.J., JENKS, RICH and MILLER, JJ., concurred.
Plaintiff's exceptions sustained and motion for new trial granted, costs to abide the event.