Dunbar v. Commercial Elec. Supply Co.

• Decision Date: 09 April 1912
• Citation: 123 P. 417,32 Okla. 634,1912 OK 292
• Parties: DUNBAR v. COMMERCIAL ELECTRICAL SUPPLY CO.
• Court: Oklahoma Supreme Court

123 P. 417

32 Okla. 634, 1912 OK 292

DUNBAR v. COMMERCIAL ELECTRICAL SUPPLY CO.

Supreme Court of Oklahoma

April 9, 1912

Syllabus by the Court.

Where the question arises as to what laws are in force in another state, and the same are neither pleaded nor proved, it will be presumed that such laws are the same as the laws of this state.

Where at the time a promissory note became due, the law of the forum allowed days of grace, but, before trial or the bringing of an action to recover on such note, the law was repealed, and the new statute made such note due at the time fixed therein, without grace, the former law, and not the law in force at the time of the trial, should govern.

It is competent for the parties to a contract of pledge to agree that, upon default in the provisions of such contract, the pledgee may sell, according to the terms thereof, certain certificates of stock so deposited, without reference to the maturity of the indebtedness secured thereby.

A sale fairly made by a pledgee of certificates of stock, upon default in terms of the contract of pledge, will not constitute a conversion of the pledge. Neither will delay in making the sale, where the terms of the contract are not broken, create a liability on the part of the pledgee for the value of the stock so hypothecated.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by the Commercial Electrical Supply Company against S.E Dunbar. Judgment for plaintiff, and defendant brings error. Affirmed.

George A. Murphey, of Muskogee, for plaintiff in error.

Masterson Peyton, of Muskogee, and Matthew G. Mason, of Idabel, for defendant in error.

SHARP C.

December 3, 1908, the plaintiff in error, defendant below, executed to the defendant in error, plaintiff below, his promissory note in the sum of $1,260.58, payable six months after date at St Louis, Mo. At the same time, there was delivered to the payee of the note, as collateral security for the payment thereof a certain stock certificate for 10 shares of stock in the Dunbar Electrical Supply Company of Oklahoma City, accompanied by a written contract of pledge, included in which was the following undertaking and power of sale: "And agree to give additional security whenever market value of the above collateral should decline and on notification of said Commercial Electrical Supply Co., by any of its officers to me. In default of payment of said note at maturity or the payment of any such other obligations, or in default of my giving such additional security when so notified within twenty-four hours after such notice, I hereby authorize said Commercial Electrical Supply Co. or any of its officers, or agents, to sell said collateral at public or private sale, or otherwise, at its option, without notice," etc.

On the 14th day of April, 1909, the Supply Company caused to be served upon defendant a written notice in words and figures as follows: "To S.E. Dunbar, Oklahoma City, Okla. You are hereby notified that the ten (10) shares of stock of the Dunbar Electrical Supply Company, hypothecated by you to the COmmercial Electrical Supply Company, St. Louis, Mo., to secure the payment of a promissory note amounting to one thousand two hundred sixty and 58/100 ($1,260.58) dollars, have so greatly declined in value as not to be sufficient security for the aforesaid note. You are therefore notified that unless you give further security for the payment of the aforesaid note within twenty-four hours after service of this notice, that the original ten shares of stock of the Dunbar Electrical Supply Company, held by us, will be sold, pursuant to the terms of the agreement signed by you. Commercial Electrical Supply Company, by Louis T. Nolker, President and Tr." Upon receipt of the above notice, defendant wrote W. H. Nolker, vice president of the Supply Company, requesting that the action contemplated by the notice be held up until the 25th of the month, stating that defendant had sold his property, and, in the event that he made a settlement of certain business by the date named, he would send a check in full to cover the note, but provided that, if he did not succeed in getting his business closed up, additional security would be forwarded on the date named. The note was not paid, nor was the additional security furnished. On either June 3 or 4, 1909, the Supply Company sold the 10 shares of stock of the Dunbar Electrical Supply Company to W. H. Nolker, for $400 cash, which amount was credited on defendant's note, and on the 31st day of July following suit was instituted in the superior court of Muskogee county to recover judgment for the balance due. On the 18th day of October, 1909, the defendant answered, charging the Supply Company with the conversion of the certificate of stock deposited with it, and charging that said stock, on the date of its conversion, was worth $1,000. Judgment for the difference, or $260.58, was confessed. At the conclusion of the testimony, the court sustained a demurrer to the defendant's testimony and instructed a verdict for plaintiff for $922.46.

The only error assigned, properly before us for consideration, is whether or not the court erred in sustaining the demurrer of the plaintiff below and in directing a verdict. It is urged that the sale of the pledged certificates was made before maturity of the note. This is true. The note, according to its terms, matured on June 3d; and the testimony is that the sale of the stock certificate was made on either June 3d or 4th. What the Missouri law was at that time with reference to days of grace and the time of payment of negotiable instruments, we are not advised. It was neither pleaded nor proven; and we must therefore presume that the laws of the state of Missouri were the same as the laws of this state, in force at that time. Greenville Nat. Bank v Evans-Snyder-Buel Co., 9 Okl. 353, 60 P. 249; Mansur-Tebbetts Imp. Co. v. Willet, 10 Okl. 383, 61 P. 1066; Keagy v. Wellington Nat. Bank, 12 Okl. 33, 69 P. 811; Betz v....