Gustason

The plaintiff brought this action to recover damages for malicious prosecution of a criminal action against the plaintiff. In accordance with the verdict of a jury, judgment was entered for plaintiff in the sum of $500. Thereafter the defendant moved for a new trial. The court granted said motion and in its order specified that the motion was granted upon the ground that the evidence does not support the verdict. From said order plaintiff appeals.

The plaintiff as a physician had rendered professional services to the wife of respondent A. J. Speak, and for those services had made a charge of $200. Mr. Speak contended that the charge was excessive. After the disagreement had continued for some time Speak sent to the plaintiff a check for $125 with a notation thereon in the words “Payment in full to date.” Thereafter the plaintiff pasted over the defendant’s notation on the check a slip of paper on which he had written the following: “Applies on account statement rendered,” and stamped thereunder with a rubber stamp his own name and address. With the check in that condition he presented the same to the bank for payment. On being informed of these facts, Mr. Speak ordered payment…