Gibson v. Lenhart

Mr. Justice Sterrett delivered the opinion of the court, December 30th 1882. It may be conceded that in 1877 the bonds in controversy were deposited in the First National Bank of Meadville, to secure the note of Thorp and Reynolds in favor of Beringer, and that the note was not .fully paid nor the collaterals voluntarily surrendered to the pledgor; but, it by no means follows that the same bonds may not have been subsequently pledged to the plaintiff as collateral security for the money loaned by him to Thorp in April 1878. Being negotiable securities, every transfer of the bonds to a new holder, for value and without notice, would give the latter a good title to them as against the former holder. That such is the status of coupon bonds, similar to those in question, is too well settled by recent decisions to admit of any doubt: County of Beaver v. Armstrong, 8 Wright 63, 69; Murray V. Lardner, 2 Wal. 110, and Commissioners v. Bolles, 4 Otto 109. Like a bank note, or promissory note indorsed in blank, they pass by delivery, and a good faith purchaser is unaffected by want of title in his vendor. The last [528] taker is presumed to be a bona fide holder for value and may maintain his possession against everybody until the contrary is successfully established by those who undertake to assail his possession. It is claimed by plaintiff that in making the loan to Thorp in April 1878, an essential provision of their agreement was that the latter should deposit in the First National Rank of Meadville $9,000, Shenango and Allegheny Railroad bonds, as collateral security for the loan, and furnish him with the bank’s certificate of such deposit; that a few days thereafter he received from the cashier a certificate setting forth, in substance, that Thorp had deposited in the bank bonds corresponding in kind and amount with their agreement, “ to be held as security for the payment of his note for $6,674.40, dated April 25th 1878, due in one year from that date that, resting in the belief that Thorp had fully complied with the condition on which he obtained the loan, he awaited the maturity of the note ; and, immediately after the failure of Thorp he called at the bank and was informed by its president that his bonds were there, and his claim was secure ; that, afterwards, upon inquiring for the bonds, an envelope, indorsed, “ Dr. Gibson $9,000 bonds, Shenango and Allegheny Railroad Co.” was handed him by an officer of the bank who informed him that on surrendering the certificate of deposit he could lift the bonds; but, having mislaid the certificate, the bonds were not taken out of bank. By an arrangement with its president, however, the past due coupons wore collected by the bank and the proceeds $315, marked “ The property of Dr. William Gibson,” placed in the envelope with the bonds. After the failure of the bank, the money thus identified as his, was handed to plaintiff by the temporary receiver ; but, in the absence of the still missing certificate, he declined to surrender the bonds, and they remained in the vaults of the bank until taken by the sheriff on the writ of replevin and delivered to plaintiff. If the case had been submitted to the jury on the testimony before them, they would have been warranted in finding the facts substantially as claimed by plaintiff; and that the bonds in controversy are those referred to in the certificate of the cashier and afterwards exhibited to the plaintiff in the bank, where they had been deposited by Thorp in compliance with the condition on which he obtained the loan. In view of the testimony and the conclusions which might have been fairly and legitimately drawn therefrom, the learned judge erred in refusing the plaintiff’s points and in withdrawing from the consideration of the jury the several questions of facts therein presented; and also, in charging as complained of in the fourth to seventh specifications inclusive. As already suggested, [529] the questions of fact referred to were fairly raised by the evidence, and if they had been found, as they might and probably would have been, in favor of the plaintiff, he would have been entitled to a general verdict establishing his right to all the bonds. It cannot be pretended that the bonds were pledged to the plaintiff as security for an independent and antecedently contracted debt. The cotemporaneous agreement to deposit them as collateral security entered into and formed an essential feature or condition of the contract of lending. It was doubtless the leading consideration, so far at least as the plaintiff was concerned, without which the loan would not liave been made. The contract was carried out in apparent good faith, and was so recognized by the bank, which now claims, in direct contradiction of its own certificate, to have beeii the custodian of the same bonds for a prior pledgee. If there was any bad faith in the transaction, it was not on the part of the plaintiff, nor is there a particle of testimony to show that he was aware of any, on the part of any one else. From the time the bank issued and delivered the certificate of deposit it became his agent for the custody and safe keeping of the bonds. Its possession was thenceforth his possession, as fully to all intents and purposes as if they had been actually delivered to him. While the pledge was not fully completed by actual delivery or deposit of the bonds on the day Thorp borrowed the money, the continuance of the loan depended on the full execution of the pledge; and, the subsequent forbearance, which doubtless resulted from receiving the certificate of deposit placed the plaintiff in no worse position than he would have occupied if the pledge and receipt of the money had been simultaneous. Upon the facts claimed by the plaintiff and suggested in the points submitted by him, all of which might have been found in his favor, he is entitled to the bonds, as against the bank, if not against Beringer, the former pledgee, also. But as to the latter we express no opinion, for the reason that he is not a party to this suit. The testimony, complained of in the first assignment, should have been excluded on the ground of incompetency. Judgment reversed and a venire facias de novo, awarded.