Appell v. Webster

SPENCE, J. Plaintiff brought this action as administrator of the estate of Sherman Appell, deceased, for the alleged conversion of certain shares of stock in the Hal Webster Co., a corporation. At the close of plaintiff’s case, defendants moved for a nonsuit, which motion was granted. A judgment of nonsuit was thereupon entered and plaintiff appeals therefrom.

Plaintiff alleged in substance that Sherman App.ell, deceased, was the owner of 999% shares of said stock at the time of his death and that plaintiff thereafter became the owner thereof as administrator of the estate of said deceased; that on April 7, 1937, defendants unlawfully converted said stock to their own use to plaintiff’s damage in the sum of $7,500. Defendants denied all the material allegations of the amended complaint, and as a separate and further defense alleged that during his lifetime, said Sherman Appell had executed two promissory notes in favor of defendant Hazel P. Webster and had pledged said shares of stock to said defendant as security for the payment of said promissory notes; that thereafter default was made in the payment of said notes and that after demand and nonpayment thereof, defendant Hazel P. Webster sold said shares of stock at public auction to the highest bidder, pursuant to notice of sale of pledged property given in the manner required by law, for the sum due as principal and interest on said promissory notes and no more.

The proceedings on the trial were very brief. The only witness called by plaintiff was defendant Hal Webster, who was called under section 2055 of the Code of Civil Procedure. The stock certificate issued to Sherman Appell was admitted in evidence as plaintiff’s exhibit number 2. On said stock certificate appeared the following assignment signed by the deceased:

“For value received, I hereby sell, assign and transfer unto Hazel P. Webster, nine hundred and ninety-nine % shares (999%) represented by the within certificate and do hereby irrevocably constitute and appoint Hal Webster at[553]torney to transfer the said shares on the share register of the within named corporation, with full power of substitution in the premises.

“Dated March 4, 1934.

“Sherman Appell

“In present of

“Hal A. Webster.”

The notes signed by the deceased were also admitted in evidence. It was stipulated that said stock was purchased by defendant Hazel P. Webster at the public sale held in April, 1937. Counsel for respondents stated “I would like to ask Mr. Appell with reference to the question about the legality of the sale.” Mr. Appell, the plaintiff, replied, “I am not raising that question at all, the sale of the 999% shares.” No other evidence material to this discussion was introduced before plaintiff rested.