APPEAL from the Circuit Court of Macoupin County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The plaintiff Norman E. Hulcher sued the defendant Archer Daniels Midland Company (ADM) for malicious prosecution and wrongful attachment in the circuit court of Macoupin County. After a bench trial a judgment was entered in favor of Hulcher and against ADM in the amount of $50,000 plus costs. The defendant has appealed from the adverse judgment and also claims that the amount of damages awarded were excessive. The plaintiff, with leave of this court, has filed a late cross-appeal claiming that the amount of damages awarded was inadequate.
A history of the dealings between plaintiff and defendant, which commenced in the 1950's, is necessary to fully understand the issues raised in this appeal. Specifically we will set forth the background which resulted in ADM filing suit against Hulcher, who was then doing business as Hulcher Soya Products Company, Incorporated. That lawsuit formed the basis of this action against ADM for malicious prosecution and wrongful attachment.
Hulcher Soya Products Company, Incorporated, was incorporated in 1946. Hulcher, himself, was president of the corporation and owner of 999 of 1000 shares of the corporation. Although Hulcher's corporation was initially engaged in other businesses, it ultimately became active as a trader in the soybean futures market. In the course of this dealing, Hulcher's corporation purchased and sold soybean futures contracts from and to many companies, one of whom was the defendant ADM. In December of 1955 ADM requested a financial statement from Hulcher's corporation. Hulcher personally prepared a financial statement as of the close of business on December 1, 1955, showing a net worth for Hulcher's corporate business of $862,777. When the futures market took a sharp downturn in 1956, Hulcher's corporation was unable to pay its debts as they came due. Ultimately the Hulcher Soya Products Company, Incorporated, was forced into bankruptcy. During the bankruptcy proceeding it became apparent that a substantial discrepancy existed between the financial statement Hulcher had given to ADM and an audited financial statement of Hulcher's corporation. During the pending bankruptcy, several sales of Hulcher's corporation were proposed. The first attempted sale of all the bankrupt corporation's assets was to Wallace Huegely. This sale was rejected by the bankruptcy court. A subsequent sale of just the common stock of the corporation was approved and accomplished to Frank Young. ADM and several other creditors of the corporation, with Hulcher's agreement, reserved the remaining amounts of their claims for debts of the bankrupt corporation, against Hulcher personally. On August 10, 1959, ADM instituted a lawsuit against Hulcher personally by filing an affidavit for attachment and obtaining a writ of attachment. ADM's complaint alleged in count I that Hulcher had prepared and submitted a financial statement to ADM which was false and fraudulent in that it materially misrepresented the net worth and assets of Hulcher Soya Products Company, Incorporated. The second count of ADM's complaint alleged that Hulcher had failed to give ADM notice of a material change in his corporation's financial condition contrary to the express representation in the financial statement that no material change had occurred and that Hulcher would give ADM notice if such a change in the financial condition did in fact occur. Following a bench trial a verdict was rendered in favor of Hulcher and against ADM on July 26, 1960. ADM appealed from the adverse verdict, but it was affirmed by the appellate court on September 6, 1961. (Archer-Daniels-Midland Co. v. Hulcher (1961), 32 Ill. App.2d 111, 176 N.E.2d 816 (abstract).) Thereafter, the petition of ADM for leave to appeal to the Illinois Supreme Court was denied.
Hulcher then instituted the lawsuit from which this appeal is taken against ADM. Following a verdict in Hulcher's favor in the amount of $50,000, ADM filed this appeal. ADM has phrased the issues presented for review as follows:
1. Did ADM have probable cause to begin its action against HULCHER?
2. Did ADM act with malice in bringing its action against HULCHER?
3. May an attachment be founded on a claim or must it be based on an actual debt?
4. Did the trial court erroneously admit certain testimony into evidence?
5. Were the damages awarded by the trial court excessive?
Hulcher, on his cross-appeal has phrased as an additional issue: Whether the damages awarded were inadequate as a matter of law.
The elements of the tort of malicious prosecution are as follows:
"(1) institution and prosecution of judicial proceedings by the defendant; (2) lack of probable cause for those proceedings; (3) malice in instituting the proceedings; (4) termination of the prior cause in plaintiff's favor, and (5) suffering by plaintiff of some special injury, beyond the anxiety, loss of time, attorney fees, and necessity for defending one's reputation, * * *." (Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 818, 372 N.E.2d 685, 687.)
It is not disputed that the original judicial proceedings against Hulcher were instituted and prosecuted by ADM. Those judicial proceedings were also terminated in Hulcher's favor. The amount and existence of damages is a separate issue raised by ...