Draper v. Stone

Libbey, J. From the bill, answer and proofs these facts appear: On the twenty-ninth of February, 1876, the plaintiff was the owner of eighteen shares of the capital stock of the Hardy Machine Company, of which Charles Hardy, the defendant’s intestate, was then treasurer, and on that day he transferred said shares to said Hardy, taking from him his agreement, under seal, of that date, by which ‘"in consideration of one dollar and other good and sufficient considerations,” he agreed to "transfer and deliver to him the said Draper, his legal representatives or assigns eighteen shares in the capital stock of the Hardy Machine Company, each of the par value of one hundred dollars, upon request or demand of the said Draper, his legal representatives or assigns being made of me (him) in writing therefor,” and by the same agreement, and for the same consideration he agreed to pay the plaintiff, from time to time, a sum of money equal to any dividends that might be declared on said stock until the transfer thereof, to be paid as often as, and directly after the dividends should bo made and become payable. The stock ivas taken by said Hardy to be held for the plaintiff till he requested a transfer, as stipulated in said agreement, Hardy paying nothing for, and having no interest in It. On the third of March, 1876, said Hardy transferred eight of said shares to one Gould, at the same time holding in his own name, ninety-three shares of said stock, besides those transferred to him by the plaintiff; and at the time of his death ho held one hundred and thirty-three shares. The defendant is administrator of the estate of said Hardy, which was duly represented insolvent, and is in fact insolvent. Demand was duly made on the defendant for a transfer of said shares. Upon these facts we think it clear that the defendant’s intestate held the eighteen shares of said stock in trust for the plaintiff; and that this court, acting in equity, has power to require the [178] defendant, who has no better title than his intestate, to convey and transfer them to him. It is claimed, however, in behalf of the defendant, that the trust attached to the identical shares transferred by plaintiff to the defendant’s intestate, and that, as he held only ten of them at the time of his death, having transferred the other eight to Gould, the plaintiff is entitled to a transfer of the ten shares only. It was the duty of the trustee, in the proper discharge of his trust, to hold all the shares till the plaintiff demanded a transfer. The transfer to Gould was in violation of the trust,, and the plaintiff had a right to require him to replace the stock. Story’s Eq. Jurisdiction, § 1263. As he then held a sufficient number of shares in his own name, and continued to hold them at the time of his death, equity will treat him as holding them for the plaintiff. The same result would follow if we treated the agreement of February twenty-ninth, 1876, as a contract by Hardy to convey to the plaintiff eighteen shares of said stock. They were fully paid for, and nothing further was required of the plaintiff, but to demand a transfer. He was, in the mean time, entitled to all their earnings. Hardy-died holding the shares. His estate is insolvent, and the plaintiff’s remedy, at law is inadequate. He has the right to a decree for a specific performance of the contract. Clark v. Flint, 22 Pick. 231; Todd v. Taft, 7 Allen, 371. Decree for the plaintiff for a transfer of the stock as prayed for, and for costs. Appleton, C. J., Walton, Virgin, Peters and Symonds, JJ., concurred.