Fisher v. Exchange National Bank

BURNETT, J.

The action was to recover damages for the alleged conversion of oil stock, and the appeal is from a judgment of nonsuit in favor of defendant. On March 16, 1914, plaintiff borrowed seven thousand seven hundred dollars from defendant, and executed his promissory note therefor payable ninety days after date, with interest at the rate of eight per cent per annum, payable quarterly. To secure the payment of said liability, plaintiff pledged one ■ rmdred shares of oil stock and executed a contract of pledge, which is a part of said promissory note. The material portions of said contract of pledge are as follows:

“I

hereby deposit with said bank as collateral security for the payment

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of this or any other liability or liabilities of mine to said bank, due or to become due, or that may be hereafter contracted, the following property, viz.: 95 shares United Petr. Co., 5 shares Union Oil Co. . . . with this condition, viz.: . . . and on the nonperformance of this promise, or on the nonpayment of any liability or liabilities above mentioned to said bank, its president or cashier ... is and are hereby given full power and authority to sell the whole or any part of the above named securities ... at public or private sale, at any time or times hereafter, without any demand or advertisement or notice, such demand, advertisement and notice being hereby expressly waived . . . and after deducting all legal or other costs or expenses for collection, sale or delivery, may apply the residue of the proceeds of such collection, sale or sales, to pay any or either or all of said liabilities as said Exchange National Bank of Long Beach . . . shall deem proper, returning the overplus to the undersigned ; and the undersigned agrees to pay the holder thereof any deficiency upon demand. The maker and indorsers of this note hereby waive demand, presentment for payment, protest and notice of protest.” On January 26, 1916, defendant collected a dividend of $150 on said stock, which it credited on the principal of said note, thereby reducing the principal to $7,550. Only a small part of the interest was paid, and from time to time as said interest accrued plaintiff gave to defendant promissory notes to cover it. The first one, payable on demand was given on August 19, 1914 ; the second, payable on March 16th, after date, was given on March 5, 1915; the third, payable on demand, was given on July 8, 1915; the fourth, payable on demand, was given on October 6, 1915; the fifth, payable on demand, was given on December 6, 1915; the sixth, payable ninety days after date, was given on May 9, 1916. ' On August 7, 1916, plaintiff executed a new note dated June 16, 1916, payable ninety days after date, for $7,550. This last note was given as a renewal of the former note for seven thousand seven hundred dollars and defendant indorsed on said original note of March 16, 1914, the following words: “Paid August 7,1916, Exchange National Bank of Long Beach, California.” On August 22, 1916, defendant sold the said one hundred shares of stock at $85 a share, and received therefor $8,498.10. A contract of pledge, identical with that made on March