New York Assets Realization Co. v. McKinnon

WARD, Circuit Judge. This is a writ of error to a judgment dismissing the complaint in an action against the defendant individually and as agent of the stockholders of the Bank of North America for the wrongful conversion of 500 shares of Chase National Bank stock, belonging to Arthur P. Heinze, the plaintiff’s assignor. The plaintiff’s case, taken most favorably to it, as the rule is, was that Heinze was the owner of five certificates for 100 shares each of the stock in question, which he had delivered to one Morse, together with other collateral, to secure payment of his note for $150,000; that Morse separated these shares from Heinze’s note, and used them, together with certificates for other 500 shares of the same stock as .collateral for his own note to the Metropolitan Trust Company for $150,-000 maturing December 16,. 1907, and that the Bank of North America, its receiver, and finally the defendant knew from the beginning that the 500 shares in question were the property of’Heinze. Further, that Morse, when his note fell due, tendered payment in full to the trust company, and demánded the collateral, which the trust company, under advice of counsel, refused to deliver. Subsequently January 30, 1908, the Bank of North America, claiming to be the owner of the other 500 shares of Chase stock, tendered payment of the note, and demanded the collaterals, which the trust company refused. The receiver of the bank, for whom the defendant was subsequently substituted as plaintiff, brought an action against the trust company for the wrongful conversion of the 1,000 shares of Chase National Bank stock as collateral to Morse’s note. The trial court directed a verdict in favor of the plaintiff for the amount claimed, but by virtue of a stipulation between the parties the judgment provided that upon payment of $150,000 and interest to it, the defendani should return the 1,000 shares of the Chase National Bank stock to th; plaintiff. This amount the defendant did [793] pay, and received the collateral, which he subsequently sold without notice to Heinze. The District Judge dismissed the complaint, saying: “It has been once decided in an action in which Mr. Heinze was a party that the other 500 shares, that is, other than the 500 furnished by Heinze, were not the property of Morse,, but were the property of the National Bank of North America. We spent Friday here listening to evidence which tended to show that perhaps that did not belong to the National Bank of North America, but did belong to Morse. For the purposes of this motion I am satisfied to say that it did not belong to Morse, but if it did, I hold as a matter of law that when McKinnon got the note and the 1,000 shares he was entitled to pay the amount of that note out of all the collateral, and had a right under the note to sell the collateral for that purpose, so that' under no conceivable circumstances is Mr. Heinze entitled to what he is suing for here, but I decline to go through the form of dismissing this complaint on the merits. The result is the complaint is dismissed.” . [ 1 ] This overlooks the fact that the trust corr/pany’s refusal to deliver the collaterals to Morse, the pledgor, when he offered to pay his note at maturity, discharged the lien on the collaterals, though not the debt. Morse had then, as pledgor, a clear cause of action in conversion. When the defendant paid the note, it certainly got no greater right over the collaterals (except as to the “other 500 shares,” if they-were its own) than the trust company had. In Mitchell v. Roberts (C. C.) 17 Fed. 776, 780, Caldwell, J., said: “In tfie case at bar the question is whether a tender of the,debt, after its maturity, extinguishes the lien on personal property pledged to secure its payment. Upon this question there is no conflict in the authorities. -The rule is settled that a tender of the debt, for which the property is pledged as security, extinguishes the lien, and the pledgor may recover the pledge, or its value, in any proper form of action, without keeping the tender good or bringing the money into court, because, like a tender of the mortgage debt on the law day, the tender having once operated to discharge the lien, it is gone forever. This rule accords with justice and fair dealing. It would be an exceeding great hardship on the debtor if the creditor had the right to refuse to accept payment of the debt after it was due, and at the same time retain the debtor’s property or a lien upon it for the debt. Advantageous sales would be prevented, collections delayed, and credit lost by the inability of the debtor to free his property. In many cases debtors would be ruined- before they could obtain relief by the slow process of a bill in equity to redeem. And on a bill to redeem a debtor would have to pay interest and costs down to the decree, unless he had kept the tender good. Thus the debtor, in order to protect himself against interest and costs, would be deprived of both his property and the use of his money at the pleasure of his creditor, or until, the end of a chancery suit could be reached. On the, other hand, a creditor who refuses' to receive payment of his debt when lawfully tendered cannot complain at the loss of his security for that debt, ‘because it shall be accounted his own folly that he refused the money when a lawful tender of it was made unto him.’ ” It is no excuse for the trust company’s refusal that there were variout conflicting claimants for the collaterals. Miller, J., speaking for the Court of Appeals in Cass v. Higenbotam, 100 N. Y. 248, 255, 3 N. E. 189, 192, said: “The plaintiff as bailee had no right to deny the title of the defendant as •bailor, if he, the bailor, was the true owner of the property. If there were conflicting claims to the same, the plaintiff had a complete remedy by bringing an action in the nature of a bill of interpleader, making the claimants [794] parties thereto, and in that form of an action it could be determined who was the true owner of the property. In that way he could have avoided all risk or hazard. Having thus failed to assert his' rights, he is in no position to claim that the action brought against him bars the right of the defendant to counterclaim his demand in this action. Welch v. Sage, 47 N. Y. 143 [7 Am. Rep. 423].” [2] The demand for the collaterals did not make Morse’s tender conditional, as the defendant contends. Halpin v. Phenix Ins. Co., 118 N. Y. 165, 177, 23 N. E. 482, 485. “A debtor who has transferred securities as collateral to the debt has a legal right, upon payment of the debt, to have such collaterals reassigned to him, and a tender of the debt is not destroyed by making a condition of its acceptance that the creditor transfer the collaterals to him, because that condition is one the debtor has a right to insist upon and the creditor no right to refuse, so a mortgagor who pays a bond and mortgage has a legal right to have the mortgage satisfied on the record. In no way, except by a certificate of the holder of the mortgage, can that result be accomplished. It is within the terms of the contract between the parties, and is a thing which, on payment of the debt, the mortgagee is under an obligation to do, and one which a court of equity would compel him to do. It is a condition, therefore, which the mortgagor has a right to attach to the tender of the debt, and does not destroy its effect. The tender found by the trial court was therefore sufficient.” As neither Morse nor the plaintiff’s assignor was a party to the case of Hanna, Receiver, v. Metropolitan Trust Co., affirmed as Metropolitan. Trust Co. v. McKinnon, Agent for Stockholders, 172 Fed. 846, 97 C. C. A. 194, it does no more than show that the receiver of the bank was, as against the Metropolitan Trust Company, entitled to the col-laterals upon payment of the note. He certainly could get no greater rights in respect to Heinze’s shares than the trust company had. Hand, J., said: “Morse, however, pledged these certificates with the trust company along with Heinze’s shares, for . $150,000, and the question then arises whether, upon tender, the bank could demand, not only its own shares, but Heinze’s shares. Concededly the bank had no interest in Heinze’s shares, except that it would not obtain its own without tender of the principal and interest of the whole loan, since the trust company hád the right to retain possession of all the shares until the loan was paid. Must it, then, having paid the loan, leave with the bank Heinze’s shares for the bank to turn over' to Heinze? Or could it subrogate itself to the pledge of the bank as against Heinze’s shares, in order to release its own? I think there can be no doubt that it could. In paying the loan the bank was not a mere intermeddler. It was protecting its own property, and that it could not do, except by releasing Heinze’s shares. Being wrongfully put in this position by .one of its own agents, it was not a volunteer, and it might demand of the trust company Heinze’s shares, and hold them under the same pledge as tHe trust company itself enjoyed. If this be true, then, upon tender of the full amount it was entitled to the possession of all of the collateral; one half as owner,, and the other as substituted pledgee.” Taking the testimony in the most favorable light for the plaintiff, we think it was error to dismiss the complaint. The jury might have found that the stock was Heinze’s, had been wrongfully hypothecated by Morse, that the lien of the trust company had been'discharged, and [795] that the defendant, knowing all these facts, was guilty of wrongful conversion when he sold it. Judgment reversed.