Hartford Accident & Indemnity Co. v. Feilback Co.
| Decision Date | 13 June 1941 |
| Docket Number | No. 4577.,4577. |
| Citation | 39 F. Supp. 740 |
| Parties | HARTFORD ACCIDENT & INDEMNITY CO. v. FEILBACH CO. |
| Court | U.S. District Court — Northern District of Ohio |
Ray Martin, Sr., of Toledo, Ohio, for plaintiff.
J. Eugene Farber, of Toledo, Ohio, for defendant.
Findings of Fact.
This court makes the following findings of fact.
This is an action brought by plaintiff, Hartford Accident and Indemnity Company, a corporation of Hartford, Connecticut, v. The Feilbach Company, a corporation of Toledo, Ohio, to compel defendant to transfer to plaintiff on its stock record books Certificate No. 96 for 204 shares of its stock, now in the name of Lillian Feilbach, also of Toledo, Ohio. On or before April 16, 1926, Lillian Feilbach, following the death of her husband, became the owner of said stock and at about the same time turned over possession of said certificate, without endorsement, to her son-in-law, William H. Gunckle, a banker and man of good reputation and standing, also of Toledo. Gunckle was merely the custodian of said stock, it being left with him for the purpose of safekeeping only and without any authority to endorse Mrs. Feilbach's name upon the certificate or to transfer, assign, or pledge the same.
On or before May 13, 1936, plaintiff as surety upon the bond of said Gunckle, as administrator of an estate then pending in the Probate Court of Lucas County, Ohio, was compelled to pay to said estate the sum of $5,242.56, the amount owed by said Gunckle to said estate and for which he was then in default. Plaintiff naturally insisted upon reimbursement by said Gunckle and to satisfy plaintiff's claim, Gunckle executed his note to plaintiff for the above amount, delivering as collateral therefor said certificate No. 96 of The Feilbach Company, owned by Lillian Feilbach. Said certificate has since been in possession of plaintiff and bears an endorsement in blank with the name "Lillian Feilbach" written thereon but not signed, authorized, or ratified by her.
Default having been made on the note, on or about June 26, 1940, plaintiff presented said certificate to The Feilbach Company for transfer and this the company refused to do.
According to the evidence, Lillian Feilbach did not know until after commencement of this action that said certificate had been turned over to plaintiff by said Gunckle, who incidentally is now serving a jail sentence on some other charge, and she did not know that plaintiff had possession of said stock or claimed any interest therein. At no time has plaintiff had any communication with Lillian Feilbach, the real owner, in person or otherwise, nor did she communicate in any way with it. The court finds therefore that Lillian Feilbach performed no act with reference to or in connection with said certificate other than to give possession thereof to Gunckle her son-in-law and that she has never assigned, transferred, or pledged it to anyone.
The court further finds that before Gunckle gave possession of said stock to plaintiff he represented to plaintiff that it was owned by his wife, and plaintiff on inquiry learned that his wife's name was Vera Feilbach Gunckle. When plaintiff saw that the stock was made out to "Lillian Feilbach" and not "Vera Feilbach Gunckle", it called Gunckle's attention to the difference in names and was informed that "Vera Feilbach Gunckle" and "Lillian Feilbach" were one and the same person, to-wit, Gunckle's wife, and that for this reason his wife had endorsed said certificate by signing both names "Vera Feilbach Gunckle" and "Lillian Feilbach". Plaintiff attempted to get confirmation of Gunckle's statement by Mrs. Gunckle's affidavit to that effect and in this connection, made two trips to the Gunckle home. Later plaintiff received from Gunckle what purported to be such an affidavit signed by his wife and plaintiff relying upon such representation made no further inquiry or investigation. It is the finding of this court that if plaintiff suspected Gunckle of any fraud in the first place making Mrs. Gunckle's affidavit necessary as a precaution, it certainly would understand that Gunckle would not hesitate much in forging his wife's name to an affidavit if necessary. It did not communicate with The Feilbach Company or Lillian Feilbach, both of whom were in Toledo where the transfer took place and both were listed in the telephone and city directories at that time.
The court finds that the endorsement of the name "Lillian Feilbach" on the transfer of the...
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