Anderson v. . Nicholas

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 602 The referee who tried this action has found that the plaintiffs were the owners and holders of twenty shares of the capital stock of the American Guano Company, and that the certificate therefor was issued to the name of A.G. Benson, the president of said company, and that he had indorsed thereon a blank power of attorney, authorizing the transfer thereof to any person. This certificate, with the blank power thereon, were wrongfully taken by a person from the possession of the plaintiff, and who sold and delivered the same to one Bowen, a clerk of the defendant. The latter paid therefor $3 per share, and on the next day Bowen delivered said stock to the defendant, who sold the same for $7 a share, although the value thereof at the time was $10 per share. That within a day or two afterwards, and before the commencement of this suit, the plaintiffs demanded of the defendant a return of said stock, at the value thereof, stating that they owned the same, and that the person named had taken it from them, without their leave or knowledge, or that *Page 603 of either of them, and offered if the defendant would pay the difference between the $60, given for the stock, and the $140 received by him on its sale that the same would be accepted in full for the stock, and the defendant then admitted, in presence of his clerk Bowen, that he, the defendant, had purchased the stock of said Alexander for $3 a share, and had sold the same for $7 a share, and received the avails thereof, but refused to return or deliver the same, or to pay the balance thereof, or any part thereof. Upon these facts the referee found as a conclusion of law, that the plaintiffs were entitled to recover the sum of $200, being the value of said stock, with interest from the 10th of November, 1858, the day of the commencement of this suit. And judgment in favor of the plaintiff was rendered upon said report, and the same was affirmed at general term. The appellant has furnished no points. There can be no question upon the correctness of this recovery. The stock, sold and converted by the defendant, and the avails of which he received, was indisputably the property of the plaintiff. The conversion by the defendant was distinctly found. The defendant acquired no title thereto, by the delivery thereof to him by the person who purloined the same from the plaintiffs, and he therefore acquired no greater or better title to it than that possessed by the person from whom he received it. (Mechanics' Bank v. New York N.H.R. Co., 3 Kern. 599.) The person taking this stock from the plaintiffs had no legal right to the same, and he could confer on the defendant no stronger or better claim to the stock than he possessed. The plaintiffs were entitled to recover the value of the stock, with the interest as found by the referree, and the judgment should be affirmed with costs.