Lotts v. Whitworth

WHITE, J.

This is an appeal from a judgment for plaintiff in an action for damages based upon an alleged malicious attachment and malicious prosecution of a civil action in the Municipal Court of the City of Los Angeles. The evidence adduced in the court below consisted solely of testimony by each of the attorneys who had represented the respective parties in the original suit which it is claimed was prosecuted by defendant and appellant herein with malice and without probable cause. The trial court also had before it the municipal court record, which was received in evidence “by reference.”

The sole question for determination is whether there was presented to the trial court evidence from which the inferences of malice and want of probable cause might properly be drawn.

On March 1, 1943, C. D. Lotts, plaintiff herein, and the defendant, Bob Whitworth, entered into a written agreement whereby Lotts employed Whitworth as his exclusive agent “for a period of 60 days from date hereof, to find a purchaser” for certain real property, and agreed to pay him a 5 per cent commission. The agreement further provided that “should a sale be made within thirty (30) days after the termination of this contract of employment to parties with whom said agent negotiated during its life and said agent notifies me (Lotts) personally or by mail, in writing, of such negotiation, within five days after the termination of this contract, I agree to pay said agent the commission fixed herein.”

On June 20, 1943, Lotts sold the property to a Mr. Frost,

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and on June 25, 1943, Whitworth filed in the Municipal Court of the City of Los Angeles a “complaint for commission,” pleading the contract and compliance therewith by him in general terms, and also caused a writ of attachment to be levied upon funds in escrow in connection with the sale. In his affidavit for attachment Whitworth deposed that Lotts was indebted to him upon a written contract.

At the opening of the trial of the municipal court action the defendant therein (plaintiff here) objected to the introduction of any evidence on the ground that “no contract agreement memorandum was produced in writing bearing the signature of the defendant, C. D. Lotts, for that period of time which he claimed a commission.” Thereupon, according to the testimony of Whitworth’s attorney, the following offer of proof was made on behalf of Whitworth in the municipal court action: