123 F. 24 (9th Cir. 1903), 917, Bell v. Mills

Docket Nº:917.
Citation:123 F. 24
Party Name:BELL v. MILLS.
Case Date:May 18, 1903
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 24

123 F. 24 (9th Cir. 1903)




No. 917.

United States Court of Appeals, Ninth Circuit.

May 18, 1903

Page 25

T. Z. Blakeman and Warren Olney, for plaintiff in error.

John Flournoy, for defendant in error.

In Error to the Circuit Court of the United States for the Northern District of California.

The plaintiff in error, as special administratrix of the estate of her deceased husband, Thomas Bell, brought an action against the defendant in error for damages for the conversation by him of 675 shares of the capital stock of the Bellingham Bay & British Columbia Railroad Company, 3,401 shares of the capital stock of the Black Diamond Coal Mining Company, and 3,435 shares of the Bellingham Bay Improvement Company. The complaint alleged that Thomas Bell, while the owner of said shares, pledged the same, together with a promissory note which he held, for $29,262.18, to the Bank of California, to secure his liability on promissory notes to that bank in the sum of $50,000, with some accrued interest, and to secure the further sums of $3,976.69 and $3,859.10, his indebtedness to the bank on certain other shares of stock in other corporations; that Thomas Bell died on October 16, 1892; 'that the said the Bank of California on the 20th day of July, 1893, duly presented to the executors of the last will of said Thomas Bell, deceased, its claim against said estate, duly verified, which was allowed and approved by said executors on the 20th day of July, 1893, and by the said court on the 20th day of July, 1893, and was thereafter filed in the matter of the said estate on the 31st day of October, 1899'; that on March 22, 1898, the bank delivered to the said executors its written demand for the payment on or before March 25, 1898, of the portion of said indebtedness which was then unpaid, and at the same time delivered to said executors a written notice of the sale of the said shares of stock so pledged, the sale to be made on April 1, 1898, by public auction; that the bank also caused a notice of said proposed sale to be published daily in a newspaper of general circulation published in said city and county from March 26, 1898, to March 31, 1898, both dates inclusive; that on April 1, 1898, pursuant to said notice, the bank caused all of said shares so pledged to be sold at public auction, and the same were sold on said day to the defendant in error for the sum of $40,071.95; that thereupon the bank delivered on said day to the defendant in error certificates which it held for all of said shares, and the defendant in error delivered and surrendered the same to the respective corporation by which they had been issued, and received from said corporations new certificates in his own name, all of which shares he has converted to his own use'; that the defendant in error knew and had notice of the said demand, notice, and sale, and publication of notice, so made by the bank, and of the contents of each thereof; and that no other demand of payment or notice of sale was ever given or made or published. To this complaint the defendant in error demurred on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiff in error having declined to amend, judgment was entered for the...

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