Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Franklin
County, the Hon. George Kasserman, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The circuit court of Franklin County entered summary judgment for the Benton Community Bank, defendant in a malicious prosecution action brought against it by Bill Joiner, plaintiff. A divided appellate court reversed and remanded the cause for trial (76 Ill. App.3d 871), and we allowed defendant's petition for leave to appeal.
In 1976, when the occurrences from which this litigation arose took place, plaintiff had been a used car dealer in Benton for some 16 years. During most of that period defendant had furnished "floor plan" financing for the used car business up to a maximum of $35,000. Under that arrangement plaintiff purchased used cars in Illinois and surrounding States and kept them on his lot until they were sold. Bills of sale, promissory notes and trust receipts for those cars were executed by plaintiff to defendant, the terms of which limited plaintiff to cash sales of the financed cars. The document terms also required plaintiff to report to defendant the sale of any car so financed on the day of sale, keep the proceeds of the sale segregated from plaintiff's personal funds and pay those proceeds to defendant on the sale date.
During October 1975 a routine check of the used car lot by defendant disclosed that some 12 of the financed cars were missing. Those cars had been sold by plaintiff without payment of the proceeds to defendant, and indictments were subsequently returned against plaintiff in February 1976, charging him with theft in that he "knowingly obtained by deception control over" defendant's property, permanently depriving defendant thereof in violation of sections 16-1(a) and (b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 16-1(a), (b)), and with disposing of collateral security without paying the party secured by the security agreement in violation of section 9-306.01 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 9-306.01). Those indictments were dismissed on July 21, 1976, by the Franklin County circuit court, the docket entry reading:
"On motion of the special prosecutor William Meehan, previously appointed by the Court, and at the request of the complaining witness and in view of the fact that full restitution has been made to the complaining witness and because of the state of ill health of the defendant Robert Ewing and for other good cause shown the above case is dismissed upon motion of the special prosecutor."
On January 7, 1977, plaintiff filed his complaint for malicious prosecution. In a subsequent deposition taken by defendant, plaintiff testified that, following discovery by defendant that plaintiff had sold 12 cars without remitting the proceeds, defendant replevied and sold the remaining cars, applying the proceeds to plaintiff's indebtedness and leaving a balance of about $24,000 plus interest owed by plaintiff to defendant. Plaintiff further testified that following his indictment he had many conversations with defendant's employees.
"A. I can't tell you all the conversations, you know, that I had with them. I mean, they had me arrested and I went in and talked to them, and still seeing if I couldn't make some kind of arrangements to pay this debt that I owed. And I talked to Mr. Davis and Mr. Wagner and Mr. Newcomb at various times.
Q. Were these had after you were indicted or before you were indicted?
A. That was after I was arrested and after I was indicted.
Q. As to those conversations, can you tell me the substance of any of them?
A. Well, they had me indicted for theft and they had me indicted for fraud, and what I wanted to do was to pay the bank what I owed them, but I wanted these indictments, well, I wanted these charges dropped against me. That's the essence of the whole thing, I guess.
Q. Do you recall what any of the bankers said when you explained this to them?
A. Yes. They stipulated that a few times. They didn't know what they could do. They also stipulated that they were interested in their ...