Beach v. Nevins

• Decision Date: 04 June 1908
• Docket Number: 15.
• Citation: 162 F. 129
• Parties: BEACH v. NEVINS.
• Court: U.S. Court of Appeals — Third Circuit

162 F. 129

BEACH v. NEVINS.

No. 15.

United States Court of Appeals, Third Circuit.

June 4, 1908

M. W Acheson, Jr., for plaintiff in error.

S. S Mehard, for defendant in error.

Before MOODY, Circuit Justice, and DALLAS and GRAY, Circuit Judges.

GRAY Circuit Judge.

The material facts, as disclosed by the record brought up by the writ of error in this case, are as follows:

The appellant and plaintiff below, a citizen and resident of the state of New Jersey, was duly appointed, by the Court of Chancery of the state of New Jersey, a receiver of the International Mercantile Agency, a corporation of that state and by the order of said court was clothed with power and authority (not here disputed) to demand, sue for, collect and receive all the goods and chattels, rights and credits, moneys, effects, choses in action, bills, notes, and property of every description of the said corporation, and to institute at law or in equity all necessary legal proceedings for the recovery of the same.

Suit was brought by the plaintiff, as such receiver, against the defendant, Lewis H. Nevins, a citizen of the state of Pennsylvania. The cause of action, as set out in the statement of claim, is, that on August 26, 1903, the said defendant made and executed his promissory note, to his own order, for $5,000, payable January 1, 1904; that the said defendant thereupon indorsed in blank the said note and delivered the same, for value received and (of course) before maturity, to the said International Mercantile Agency; that said note was duly presented for payment, and payment thereof refused by the defendant, and that since the plaintiff's appointment as receiver, as aforesaid, he had made demand upon the defendant, who refused, and ever since has refused, to pay the said note, or any part thereof. The affidavit of defense sets forth, and there is evidence tending to show, that on the 26th day of August, 1903, the date of said note, there was a transaction in the city of New York, between the defendant and one Ross M. Turner, at that time secretary of the said International Mercantile Agency, in which, after certain representations made by said Turner as to the condition of said company and the value of its stock, it was agreed that if defendant would make the aforesaid note for $5,000 and give the same into the said Turners, possession, as secretary of the said company, he, Turner, would endeavor to get for the defendant 50 shares of the stock of said company, and deliver the same to the defendant on that same day, August 26, 1903, and that he would either deliver to the said defendant the certificates for the said 50 shares of said stock, or return him the said note on the evening of that same day, at the Hotel Victoria, in the city of New York; that, relying upon this stipulation that the said stock should be delivered or said note returned to the defendant on that same day, defendant executed and indorsed said note and delivered the same into the possession of the said Ross M. Turner.

It is admitted that the certificate for said stock was not delivered to the defendant on the said 26th day of August, nor until after the 18th day of September following, when the same was mailed by the said Turner from New York to the defendant, in Kittanning, Pa. The letter inclosing said stock was received by defendant, Nevins, October 2d, and returned to Mr. Turner in a letter dated that day, stating that it had been promised to be delivered to him at the Hotel Victoria on August 26th, the day of the purchase of the stock. On October 12th, this stock was remailed to the defendant by the president of the company, and on October 14th was again returned by the defendant, with the statement that it was so returned, 'your company having failed to fulfill its part of the agreement made with me at the time I conditionally gave my note for the same, in not delivering the stock at the time specified. ' There was also evidence tending to show that at the time of the transaction in question, August 26, 1903, contemporaneously with the signing, endorsing and delivery of the note sued upon to Turner, as secretary of the said company, defendant signed a subscription contract in the following form:

'International Mercantile Agency, New York Life Building, 346-348 Broadway.

'Know all men by these presents, that I, Lewis H. Nevins, of the city of Kittanning, in the state of Pa., do hereby subscribe for fifty shares of stock of the common capital stock of the International Mercantile Agency, at $100 per share, amounting to $5,000. And I do hereby agree to pay within . . . from date of subscription the sum of five thousand dollars, being full amount of said shares.

'In witness whereof, I have hereunto set my hand and seal at New York the 26th day of August, one thousand nine hundred and three.

'Louis H. Nevins.

'Signed, sealed and delivered in the presence of T. M. Underhill.'

Written on back: 'Hotel Victoria.'

There was also evidence tending to show certain...