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Elgin Lumber & Supply Co., Inc. v. Malenius

DECEMBER 12, 1967.




Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. NEIL E. MAHONEY, Judge, presiding. Judgment affirmed.


This is an appeal from the judgment of the Circuit Court of the 16th Judicial Circuit entered on the counterclaim against the counterplaintiff and for the counterdefendant.

On September 24, 1965, Elgin Lumber and Supply Co., Inc., counterdefendant-appellee, herein called the Lumber Co., sued the defendants, O. Edwin Malenius, counterplaintiff-appellant, herein called Malenius, and Eddy Construction Co., Inc., herein called the Construction Co., to recover for materials and services furnished to the defendants in the sum of $1,307.13. Malenius filed answer and counterclaim in this proceeding. In the answer, he denied that he owed the Lumber Co. any sum whatsoever, and in his counterclaim he asserted an action for malicious prosecution against the Lumber Co.

The counterclaim alleged that Malenius was a law-abiding citizen who had neither been suspected, nor had been guilty of any crime; that the Lumber Co., through one of its agents, maliciously, falsely and without probable cause, on or about November 5, 1964, signed a complaint charging Malenius with having committed the crime of deceptive practices in violation of section 17-1 of chapter 38 of the Criminal Code (Ill Rev Stats 1965, c 38, par 17-1), and specifically with having, with intent to pay for property or services of another, issued or delivered a check upon the State Bank of Woodstock, knowing it would not be paid by the depositary; and that the Lumber Co., after said criminal proceedings were instituted, pursued a course of conduct which "it consented to or ratified said criminal prosecution."

The counterclaim further asserted that the Lumber Co., by and through its officers and agents, then and there falsely, maliciously and without probable cause, procured the issuance of a warrant for the arrest of Malenius; that he was arrested, was compelled to enter into a recognizance, and to answer the charge; that on September 7, 1965, the State's Attorney of Kane County moved for, and the Circuit Court entered a nolle prosequi as to this complaint; that Malenius was then and there discharged and acquitted of the supposed offense; and that as the result of the Lumber Co.'s malicious prosecution, Malenius was damaged in reputation, caused mental pain and anxiety, prevented from attending his usual business affairs and has expended large sums in defending himself.

The Lumber Co. answered and admitted that Malenius had been a law-abiding citizen, and denied the remaining allegations of the counterclaim. Subsequently, it filed an amendment to its answer wherein it denied that it authorized Harold Seigle, its agent, to institute criminal proceedings against Malenius, denied that Seigle signed the complaint against Malenius, and asserted that the proceeding was instituted by a party or parties unknown to it.

Malenius filed interrogatories which were answered by the Lumber Co., which stated that Seigle became president of the Lumber Co. in 1942; that he was not authorized by the Lumber Co. to swear out a criminal complaint against Malenius for deceptive practices; and that he did not do so. Seigle's unlisted telephone number was typed on the face of the complaint and it bore his purported signature.

The evidence established that Malenius was president of the Construction Co.; that Bert Hurst was credit manager of the Lumber Co., and was immediately responsible to Seigle; that in response to notice from the Circuit Clerk, directed to Harold Seigle, Bert Hurst appeared on various dates when the criminal case was set for trial; that checks drawn by the Construction Co., signed by Malenius as its president, on the State Bank of Woodstock, payable to the Lumber Co., in the total sum of $1,307.13, were charged against the account of the Lumber Co. as unpaid because the account of the Construction Co. had been closed; and that prior to trial on the counterclaim, a judgment was entered on the complaint of the Lumber Co., in its favor, and against the Construction Co., in an amount less than claimed in the complaint, and the complaint was dismissed against Malenius.

Malenius testified that the following conversation took place between Seigle and himself at the offices of the Lumber Co., prior to the issuance of the warrant against him:

"So he said, `Well, I am going to have you thrown in jail for deceptive practice and having given us bad checks.' I said `Mr. Seigle, I did not give you bad checks with intent of deceptive practice. It was an agreement between Mr. Mewes and myself at Elgin Lumber.' And at that time he said: `We have to have some security,' and I said `Fine, what do you want?' and he said `We want a note signed for the balance of the account,' which I said that I would agree to this for Eddy Construction Company. So Mr. Mewes went out and brought in a note that was typed up, and I sat and waited and he came back with a note for the balance which they showed on their account after what we owed them. The amount was somewhere in the neighborhood of Fourteen Hundred Dollars ($1,400.00) at that time. . . .

"Mr. Seigle presented me with the note and I signed the note as O. Edwin Malenius, President, and laid it on his desk. . . .

"He said: `I want this signed personally by you,' and I said I can't sign that, that's not my obligation, it's the corporation's obligation. And I said I will see that you get paid, and I said I won't sign that unless I sign for Eddy Construction Company, and I said I will discuss this with my Attorney. . . .

"He said `You pay this account immediately, or I am going to have you thrown in jail. . . .'"

Seigle testified he met Malenius only once at the office of the Lumber Co., two or three years prior to the time of the alleged conversation; and that he then only asked Malenius why he didn't pay the Lumber Co., on the ...

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