Charles Kuhl Artificial Stone Co. v. Mack

Memorandum of Decision.

The defendant in error recovered a judgment for $385, damages for malicious prosecution on a charge of taking a small quantity of the Kuhl company’s material in completing a cement sidewalk contract, a line of work in which the Kuhl company and Mack were competitors. Error was claimed in the admission of testimony as to a general custom prevailing among contractors of helping themselves to each other’s material when a small quantity was needed to complete a job.

The reviewing court holds that while such a custom is unreasonable as a rule of property, and therefore not binding, yet it was competent for the purpose for which it was evidently introduced — that is, as tending to prove a lack of criminal intent.

Judgment affirmed.