Berry v. Bank of Bakersfield

SLOSS, J.

The defendant, Bank of Bakersfield, appeals from a judgment against it, and from an order denying its motion for a new trial.

The complaint alleges that on February 1, 1911, the plaintiff, H. F. Berry, deposited with the defendant bank, as security for the payment of a fourteen thousand dollar note executed by him to the bank, a certificate for 82,144 shares of the capital stock of the Black Jack Oil Company. Said shares were held by H. F. Berry as trustee for himself and the other plaintiffs, the certificate being in the name of H. F. Berry, trustee. It is alleged, further, that the defendant was informed at the time of the transaction that the plaintiffs were the owners of the shares. On July 11, 1912, shortly before the commencement of the action, the plaintiffs tendered to the defendant the sum of $1,015.28, the balance due on the note, together with interest, and demanded the return of the stock, but the defendant refused to deliver, and still unlawfully withholds and detains the same. The complaint contains an allegation that the value of the property is $82,144 (i. e., one dollar per share), and that plaintiffs have been damaged by the withholding and detention of the property in the sum of ten thousand dollars. The complaint prays for the recovery of the possession of the property, or its value in case delivery. cannot be had, and for ten thousand dollars damages, and costs.

By its answer the defendant denied certain allegations of the complaint, and pleaded affirmatively that on March 20, 1912, the plaintiffs, H. F. Berry and F. 0. Brock, executed to the defendant their promissory note for $3,810, and that at the same time the plaintiff, H. F. Berry, pledged the shares of stock here involved to the defendant, as security for such note, upon which $2,310 is still due.

At the trial it was stipulated that transfers of their interests had been made by certain of the plaintiffs, and appropriate substitutions were made. The court found, in accordance with the allegations of the complaint, that when

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H. F. Berry made the fourteen thousand dollar note and deposited the stock as security therefor, the defendant bank was informed that the plaintiffs were the owners of said stock. It found further, that said plaintiffs were, in fact, the owners of such stock; that the tender and demand were made, as alleged by the plaintiffs; that H. F. Berry did not pledge the stock to the defendant as security for the $3,810 note described in the answer; and that said sharés were not held by the defendant as security for this note. It is further found that the value of the stock at the time of the commencement of the action was fifty cents per share, but that pending the action, such value had decreased, until at the time of the trial the stock was worth no more than ten cents per share. Plaintiff H. F. Berry, finds the court, was damaged by the withholding of the property in the sum of $10,952.40, the difference between the value of the shares at the time of the commencement of the action and at the time of the trial, less $1,015.28, the balance due on the promissory note, or a net damage of $9,937.12. The further findings are not, we think, material to the points calling for decision on this appeal. Judgment was given that the plaintiffs recover from the defendant the certificate for 82,144 shares, and, in case delivery cannot be made, that they recover $8,214.40, the value thereof; and that plaintiff Berry recover from the defendant the sum of $9,937.12 damages.