in the store at the time, and asked him what kind of cattle he desired to buy, and that he replied that he wanted young cattle; and that Smith then stated that he had five calves that he wanted to sell, and that they were on the commons some distance from the town; and that he then went with Smith, accompanied by his brother, Nelson Johnson, who had gone to the store with him, to where the calves were, and there contracted with Smith for their purchase, and paid him for them; and that Smith agreed to deliver them at a certain pasture, and that he found them in that pasture the next morning, and drove them from there to where he delivered them to Potter. He also stated to them "that, when he learned that Foreman was claiming the calves, he went into the neighborhood in which Smith had represented he lived, and inquired for him, but that he had been unable to find him. At his request, Foreman went with him to the store of Coppees & Derr, and these parties stated to them that plaintiff had a conversation with a stranger in the store about the purchase of cattle, and they detailed the transaction substantially as plaintiff had stated, but were unable to fix the time when the transaction occurred. In subsequent conversations, with other of the defendants, plaintiff made the same statement to them, and he informed some of them that, when he drove the calves from the pasture the next morning after the purchase from Smith, Foreman was working in the highway adjoining the pasture, in plain sight of the calves, and not more than 30 or 40 rods from them. In some of these conversations he stated that on the same day on which he made the purchase from Smith he went to the town of Stanwood, and had certain business transactions with parties whose names he gave. On subsequent inquiry, however, the defendant learned that those parties claimed that the transactions which plaintiff claimed were had on the day before he sold the calves to Potter did not take place until nearly two months after that. Other facts incident to the transaction were known to defendants when the prosecution was instituted, but they all bear on the question of the reasonableness of the account given by plaintiff as to how he came into possession of the property, and need not be stated.
When the prosecution was commenced, then, the defendants know (1) that the property had been stolen by some person; (2) that by the plaintiff’s own admission he had the stolen property in his possession soon after the larceny; and (3) that he claimed to have acquired the possession of it by purchase from the man Smith.
That the first two facts, standing alone, would have afforded probable cause for instituting the prosecution, cannot be denied; but it is equally apparent that, if plaintiff's story in explanation of his possession of the property is true, no ground for the prosecution existed. The question, then, whether there was probable cause depends upon whether the facts and circumstances of the transaction, as they were known and understood by the defendants, would have warranted an ordinarily prudent and cautious man in the belief that plaintiff's story as to how he acquired the possession was false.
The answer to the question depends, then, upon the conclusion or deduction which should be drawn from the numerous facts and circumstances of the case, and we think it was the province of the jury to draw that conclusion. The court could not say, as a matter of law, that the story was so unreasonable or improbable as to be unworthy of belief. It was properly left to the jury, and we cannot interfere with their finding.
2. As stated above, plaintiff, in effect, admitted, when he made the settlement with Foreman and Potter, that he had sold to Potter four calves which belonged to Foreman. After the indictment was returned, however, he, in company with his brother, who he claims was present when he made the purchase from Smith, went to Potter’s place, and Potter pointed out to them the four calves that Foreman had claimed; and on the trial both he and his brother testified that those were not the calves he had sold to Potter.
