Braga v. Ponte

RICHARDS, J.

This action was commenced by the plaintiff to recover damages for malicious prosecution. The facts of the case were, briefly, these: The plaintiff, in February, 1918, sold to one Joe T. Silva, certain personal property, consisting of cows, horses, harness, a derrick, some milk cans, and fifteen tons of hay, executing to the latter a bill of sale of said property, and delivering the same to him, and taking back a mortgage upon such of said personal property as was mortgageable to secure the payment of the purchase price thereof, which was to be made at the rate of fifty dollars monthly on the fifteenth day of March, 1918, and continuing with interest, until the whole amount was paid. Silva took the property in question, with soma further personal property of his own, to the premises of the defendant herein, leaving the same in the latter’s custody. A few months went by, when Silva, finding himself unable to keep up his payments, practically gave up his contract and went away to parts unknown. Before going he told the defendant to tell the plaintiff to come and get his property, and this information the defendant conveyed to the plaintiff, who acted upon it and went over to the premises of the defendant to get said personal property. When he arrived there the defendant was not at home, but came before plaintiff went away. In taking said property it appears that the plaintiff also took away certain small articles, such as a carpenter’s level, a hammer and staples, a washtub and kettles, a set of harness, and a hay derrick, which had not been included in his contract. The defendant, after making some effort to have these articles returned to him, went to see an attorney named Lopez, who, after hearing his story, advised that the matter be placed before the district attorney; whereupon the defendant and his attorney went to the office of the district attorney and there saw one of the deputies, to whom he made some statement as to the facts of the case, and upon said statement was advised that he should swear to a complaint charging the plaintiff with the commission of grand larceny. He thereupon made such complaint, charging the plaintiff with having stolen the aforementioned articles which were not covered by his contract with Silva, and which were alleged

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in said complaint to be of the value of sixty dollars. The plaintiff was arrested, but upon his preliminary examination before the magistrate was discharged. He thereupon commenced this action against the defendant for malicious prosecution..