McFadden v. Goettert

HARRISON, J.

The plaintiff charges the defendants with the conversion of certain shares of stock belonging to him, and seeks by this action to recover damages therefor. His cause of action is based upon the following facts: At some time in the early part of 1896 he owned and had in his possession two certificates representing, respectively, fifty and one hundred shares of the capital stock of the Consolidated California and Virginia Mining Company. These certificates were in an envelope which he carried in one of the pockets of his coat, and which was lost therefrom. At some time after he last saw the envelope he missed the stock, and upon making inquiries was informed that the defendant Goettert had found two certificates of the same stock, corresponding in the number of shares to those which he had lost. The certificates found by Goettert were numbered, respectively, 33,191 and 34,122, and were delivered by him to the defendant Heringhi, who claimed to be the owner thereof, and who afterward sold them through his brokers, Stauf & Cooper, the other defendants. The plaintiff in his complaint alleged that he was the owner of the shares of stock evidenced by certificates which were thus numbered, and this allegation was denied by the defendants. The cause was tried before a jury and a verdict rendered in favor of the defendants. From,

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the judgment entered thereon, and also from an order denying a new trial, the plaintiff has appealed.

The issue presented for trial was the plaintiff’s ownership of the shares of stock represented by the certificates which were found by Goettert, and the burden of proof was upon the plaintiff to show such ownership in himself; for unless he was the owner of these shares, he had no right of action against the defendants, and could not question their title thereto. Upon this point the judge instructed the jury as follows: “The plaintiff is obliged to establish by a preponderance of the evidence that this stock found by defendant Goettert was his [plaintiff’s] stock. It is not sufficient that he owned one hundred and fifty) shares of Consolidated California and Virginia mining stock, but that he owned the identical shares found by Goettert. Ton are to infer the identity or nonidentity of the stock claimed to have been converted with that claimed to have been lost from all the circumstances in the case on both sides.” Ho exception was taken to this instruction, the error relied on by the appellant being that the verdict is not sustained by the evidence.