Young v. New Standard Concentrator Co.

VAN DYKE, J.

This is an appeal from a judgment in favor of the plaintiff, and also from an order denying defendants’ motion for a new trial. During the progress of the trial the action was dismissed as to defendants McCabe and Doane, and judgment went against the corporation only.

The action is brought to recover damages for an alleged conversion on the part of the defendant corporation and its refusal to register and transfer certain stock which the plaintiff claimed to own and had agreed to sell to another party. The stock involved in the controversy was transferred to the plaintiff as collateral security for the payment of two promissory notes made by E. W. Doane and James R. Townsend. An assessment of two cents per share was levied on the said stock; and becoming delinquent the stock was advertised for sale. At the assessment sale plaintiff bid in the- stock, paying the assessment on the stock held by him as well as that held by his brother as security, and certificates were issued to both of them in their own name for the number of shares so bought. Thereafter the plaintiff claimed to have sold the stock so bid in to one Davis, and demanded a transfer on the books to him, which was refused, and by the refusal of the corporation to make the transfer, it is alleged in the complaint, the defendant thereby converted the stock to its own use.

The evidence at the trial showed that at the time of such sale upon the delinquent assessment there was some sort of an agreement made between the plaintiff and his brother with some of the officers of the corporation in regard to the disposition of the stock in the event that they were allowed to purchase it in. The plaintiff on cross-examination stated that the stock originally pledged to him as collateral he acquired title to under and by virtue of a sale for delinquent assessment; that is, 13,900 shares of the stock. “That represented stock that I held before as collateral security for the notes. Every certificate of stock introduced in evidence as being issued to me represented stock that had been, prior to that time, held by me as collateral security for loans. The stock that was issued on the 15th of March to J. C. Young represented stock that had been pledged to J. C. Young, my

[308]

brother, by E. W. Doane and James E. Townsend, and bought by him at the assessment sale. I knew this at the time the stock was indorsed in blank by J. C. Young and delivered to me, and I also knew it at the time I served the written notice on the defendant, asking a transfer to Davis. I knew it at the time the stock was pledged to my brother, and have known of the transaction" in connection with the stock ever since, up to the present time. I attended the sale for delinquent assessment at the office of the company. At the time of the assessment sale at the office of the company the question in regard to the ownership of any of this stock was not discussed with Doane or Townsend or any of the officers of the company that I recollect of; not talked over at all at the assessment sale with reference to the stock I bought at that sale; but it was talked over in reference to the 900 shares that-was not sold on assessment, but was left in my hands as collateral security. I don’t recollect saying at the time of the sale that I would have to buy the stock in order to protect my security, but I might have said so.” Thereupon the defendant offered to prove that in order to prevent competition in the bidding of said stock at said sale the plaintiff stated that this was his only security for Ms notes, and requested to be allowed to purchase the same, and agreed to still hold it as collateral, as before, and that upon such representations others who were present at said sale ceased bidding, and the plaintiff was allowed to purchase said stock at a little over two cents a share. Upon the objection of the plaintiff the court refused to allow this evidence