Baron v. Peoples Nat. Bank of Secaucus

• Decision Date: 05 November 1951
• Docket Number: No. 59627,59627
• Citation: 16 N.J.Super. 243,84 A.2d 492
• Parties: BARON v. PEOPLES NAT. BANK OF SECAUCUS.
• Court: New Jersey County Court

Page 243

16 N.J.Super. 243

84 A.2d 492

BARON v. PEOPLES NAT. BANK OF SECAUCUS.

No. 59627.

Hudson County Court New Jersey.

Nov. 5, 1951.

Joseph L. Freiman, Union City, attorney for plaintiff.

George W. King, Secaucus, (William L. Rae, Secaucus, appearing), attorney for defendant.

DUFFY, J.C.C.

This matter is before me on defendant's motion for summary judgment in a replevin action.

Plaintiff sues for the recovery of certain stock certificates (listed in the schedule attached to the complaint), or for the value thereof because of their alleged unlawful detention.

The pleadings and exhibits indicate that on May 9, 1949 plaintiff borrowed $12,000 from defendant and delivered to defendant his promissory note, due three months after date, and also deposited with defendant the stock certificates itemized in the schedule as collatered security for the loan. A copy of the promissory note is annexed to the answer.

The defendant contends that it served notice upon plaintiff of a depreciation in the market value of the stock which had been posted as security for the loan. It maintains that such notice was served upon defendant on May 27, June 2 and June 4, all in 1949, and in connection with such notices, it demanded that plaintiff either reduce the loan by $2,000 or post other securities having a market value of $3,000. Defendant further charges that plaintiff failed to comply with such demand, whereupon it sold the stock at the market price on June 7, 1949, satisfied the $12,000 loan from the proceeds and remitted the balance of $2,300 obtained at the sale to plaintiff. Plaintiff accepted the check tendered by defendant for such balance.

Plaintiff denies receiving any such notice. He charges that defendant on June 7, 1949 and from that time forward has wrongfully taken and detained said certificates of stock. Plaintiff further charges repeated demands upon defendant for the return to him of said stock certificates but without result. He further alleges that on October 16, 1950 he offered defendant the amount of said loan with interest and demanded the return of the described stock certificates but defendant persisted in its refusal to comply.

It should be noted that plaintiff originally commenced an action in conversion. At the pretrial conference he moved to amend his complaint to add a count in replevin. This motion was denied. Shortly thereafter, plaintiff voluntarily dismissed the conversion action and instituted the present suit in replevin. Defendant earlier made a motion for summary judgment in the present suit. This motion was denied without prejudice, and leave was granted to renew the motion at the pretrial conference.

Defendant now moves for summary judgment on these three grounds:

1. Replevin cannot lie where the defendant has neither actual or constructive possession of the chattels at the time of the issuance of the writ.

2. Plaintiff has waived his right to bring a suit in replevin having formerly elected to sue in conversion.

3. Plaintiff is estopped from bringing this action in replevin.

The first ground urged by defendant appears to be one of novel impression in New Jersey. However, from the authorities examined, it seems that the action of replevin will lie. 'Replevin, or equitable replevin may be maintained for a certificate of stock where the object is to regain possession of the specific paper and not to test the right to the property which it represents.' 46 Am.Jur. 15, par. 22. Also, 'A certificate of stock, that is, the certificate itself as distinguished from the stock which it represents, is undoubtedly property, although there is authority to the contrary, and it has a pecuniary value separate and distinct from the value of the shares it represents. * * * And if it is wrongfully detained from the true owner, or wrongfully converted by another, it may be recovered in an action of detinue or replevin or its value may be recovered by bringing an action of trover.' 11 Fletcher, Cyclopedia of Corporations (Perm.Ed.), 62, par. 5097, citing cases. In defense of this rule it has been pointed out that to permit the defendant to set up as a defense the fact that he has parted with possession (and which plaintiff alleges was done wrongfully) would be to permit him to take advantage of his own wrongdoing. Another reason for denying the motion on the ground urged is that it is proper in a replevin suit for plaintiff to ask either for the possession of the chattel or, in lieu thereof, its value. Photo Developing, Inc., v. Bittner, 133 N.J.L. 102, 42 A.2d 703 (Sup.Ct. 1945). Such alternative relief is sought in the case Sub judice.

The second ground is waiver. There is a general rule that where 'there exists an election between inconsistent remedies, such, for example, as the choice between affirming or disaffirming and rescinding a contract, the party, in the absence of transcending equities, is confined to the remedy which he first prefers and adopts. The institution of a suit is usually regarded as a decisive act which is generally held to be a conclusive waiver of inconsistent,...