Hubbell v. Drexel & Co.

Butler, D. J. The plaintiff’s ease falls short of the measure of proof necessary to support a decree in his favor. "While every [117] material averment of the bill is specifically denied by the answer, we have nothing in reply but the plaintiff’s own statements, asa witness. It is very earnestly urged that the answer admits an agreement to carry the loan and stock, so long as the collaterals should remain sufficient to protect the defendants against loss; and that this agreement has been violated by the sale of the stock. The language invoked to establish this alleged admission, however, must be regarded' as referring to the written contract contained in the several notes, — ■ which clothed the defendants with authority to decide when the col-laterals ceased to be sufficient, and to sell on plaintiff’s failure to heed a call for further deposit, or to pay the debt at maturity. It is also urged that the answer, in connection with the defendants’ previous written admission, supports the allegation that 100 shares of stock are not accounted for. Paragraph 4 of the answer, and the entry of April 14th on the $33,000 note, are referred to in support of this position. Standing alone and unexplained, they would seem to sustain the allegation. The paragraph specified plainly states that on the eleventh of April the defendants held 1,803 shares as collateral for two notes of $33,000 and $19,550, respectively, — 1,140 shares on account of the former, and 660 on account of the latter; and the indorsement on the $33,000 note shows a receipt indorsed for “one hundred shares, * * * as additional collateral, added April 14, 1877.” If this 100 shares is additional to the 1,803, as here indicated, the plaintiff is correct. It appears, however, that a few days prior to the 14th, (the exact date is uncertain,) the defendants received 200 shares on account of this note, which were not indorsed upon it. These 200 shares are included in the statement contained in paragraph 4, showing a credit of 1,803 shares, as before stated. It is quite probable, in view of other facts about to be alluded to, that the indorsement on the note, a few days later, has reference to a part of these 200 shares. Indeed it seems impossible to avoid such a conclusion. It is not only consistent with all other statements and entries of the defendants respecting the transactions and account, but is fully sustained by repeated admissions of the plaintiff, — one only of which need be particularly noticed. When the two notes referred to were consolidated, on July 17, 1877, and merged in one for $46,472.81, the balance of the stock then held as collateral was stated in the body of this note to be 1,603 shares, — the amount accounted for by the defendants. The plaintiff’s explanation of this statement and admission cannot, of course, be accepted. It is not [118] only denied by tbe answer, but shown to be erroneous by the testimony of a disinterested witness as well. The allegation that the defendants procured a transfer of part of the stock to themselves, on the books of the company, immediately on receiving the certificates from him, is immaterial. It was plainly their right to do so. If he desired to avoid this he should have contracted accordingly. When thus transferred it was unnecessary and impossible to distinguish between these shares and others held by the defendants. It is of no consequence, therefore, that in selling stock they may have disposed of these particular shares. They at all times had in hand an amount greatly in excess of the shares received from the plaintiff, and were, therefore, constantly prepared to keep their contract with him. A share of stock is without “ear-marks,” and cannot, therefore, be distinguished, as has just been said, from others of the same corporation and issue. The certificates, bearing dates and numbers, are but evidence of title. On payment of his debt the plaintiff would have been entitled to a return of the number of shares which the defendants had received, nothing more. Such was the effect of his contract: Nourse v. Prime, 4 Johns. Ch. 490; Allen v. Dykers, 3 Hill, 593; Gilpin v. Howell, 5 Barr, 41. For these reasons the bill must be dismissed, with costs. McKennan, C. J., concurred.