Jackson v. Peerless Portland Cement Co.

• Decision Date: 03 May 1927
• Docket Number: No. 102.,102.
• Citation: 213 N.W. 863,238 Mich. 476
• Parties: JACKSON v. PEERLESS PORTLAND CEMENT CO. et al.
• Court: Michigan Supreme Court

238 Mich. 476

213 N.W. 863

JACKSON

v.PEERLESS PORTLAND CEMENT CO. et al.

No. 102.

Supreme Court of Michigan.

May 3, 1927.

Appeal from Circuit Court, Branch County; Clayton C. Johnson, Judge.

Suit by Ella D. Jackson against the Peerless Portland Cement Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before the Entire Bench.

Bird and Snow, JJ., dissenting.Palmer, Palmer & Palmer, of Coldwater, for appellant.

Stanley E. Weage, of Coldwater (P. J. M. Hally, Jr., of Detroit, of counsel), for appellees.

BIRD, J.

Plaintiff is an elderly lady who lives alone on a farm in Branch county. She was the owner of 200 shares of stock of the Peerless Portland Cement Company.

On a September day in 1925 a stranger called on her and represented himself to be an agent of the Peerless Portland Cement Company. He showed her a forged telegram which purported to have been sent to him by the secretary of the cement company, ordering him to take up her stock. He also exhibited to her a forged letter which purported to have been written by the secretary of the company, directing him to take up the stock, and stating the company would send her $4,500 within a few days, explaining that the company was redeeming its stock, as it had a right to do. Plaintiff informed the stranger that in business matters of this nature she usually consulted her brother-in-law, Mr. Tomlinson, of Colon, and that she would take the matter up with him. The stranger replied that her brother-in-law, Mr. Tomlinson, had already sent in his stock. After some further talk by way of inducement plaintiff indorsed the certificates in blank and passed them over to him to be delivered to the cement company. The stranger took the stock to Detroit and sold it to the William H. Rose Company, a brokerage firm, who claims that it purchased the stock for value and without knowledge of any infirmity. Plaintiff thereupon notified the company of her loss and filed her bill stating the facts and praying for a decree which would make her sole owner of the certificates, and would compel William H. Rose & Co. to deliver the certificates to her, with a further prayer for an injunction.

It was the opinion of the trial court that inasmuch as the plaintiff indorsed the certificates in blank and placed them in the hands of a stranger, and the defendant brokerage house having purchased them from the stranger, who was the apparent owner, for value and without knowledge of the infirmity, it thereby became a bona fide holder for value.

If the stranger obtained the certificates of stock in the manner indicated by the plaintiff, he was guilty of larceny. C. L. 1915, § 15319. This statute provides:

‘Every person who shall falsely personate or represent another, and in such assumed character shall receive any money, or other property whatever, intended to be delivered to the party so personated, with intent to convert the same to his own use, shall be deemed, by so doing, to have committed the crime of larceny.’

If the stranger were guilty of larceny he would have no title to the certificates, and therefore could give none to William H. Rose & Co., as will be shown by the following authorities:

‘Share certificates not being negotiable instruments, if such a certificate is lost or stolen from the owner, without fault on his part, his right to it is superior to that of any person who may acquire it by purchase for value from any other holder; and he may maintain against the corporation and the person who sold the stolen script an action to establish his right to it.’ 10 Cyc. 619.

‘Stock certificates are assignable, and pass by indorsement and delivery as bills of exchange and promissory notes pass, but a majority of the courts have held that they are not negotiable instruments, notwithstanding a custom or usage among brokers to the contrary; and an innocent purchaser for value of such certificate, although indorsed in blank by the owner, is deemed to obtain no better title to the stock than his vendor had.’ 7 R. C. L. 213.

‘One of the most important elements of the negotiability of promissory notes is that, if the holder of such note loses it or it is stolen from him when it is indorsed in blank, a subsequent bona fide purchaser of such note is protected as against the person who loses it. A different rule seems to prevail as regards certificates of stock indorsed in blank and then lost or stolen. In this respect certificates of stock are not negotiable. It has been clearly held that a purchaser from a thief of certificates of stock indorsed in blank is not protected, nor is any subsequent purchaser of that identical certificate allowed to claim the stock.’ Cook on Corporations, § 368.

‘The rule as to the rights of a bona fide owner in respect to paper which has been lost or stolen does not extend to cases where the paper is nonnegotiable. So it has been decided that a certificate of stock is not negotiable and that a purchaser of such a certificate acquires no rights thereto where it was stolen without fault or negligence of the owner, though it was regularly indorsed.’ Joyce on Defenses to Commercial Paper, § 582.

In O'Herron v. Gray, 168 Mass. 573, 47 N. E. 429,40 L. R. A. 498, 60 Am. St. Rep. 411, it is stated that:

‘Francis, under whom the defendants derived their title, had no right to the certificates, but held them feloniously. They were the general property of the plaintiffs, and the special property of the bank, which had the possession of them as bailee. The act of Francis in taking them, and pledging them as his own, if not larceny at common law, was at least embezzlement, which by our statute is deemed to be larceny. * * * A bona fide purchaser for value from one who has taken property in such a way, acquires no title to it.’

In Schumacher v. Greene-Cananea, 117 Minn. 124, 134 N. W. 510,38 L. R. A. (N. S.) 180, Ann. Cas. 1913C, 1115, the question whether a certificate of stock was negotiable and whether an innocent purchaser from a theif had superior title were discussed. In the course of the opinion it was said:

‘The only act of plaintiff upon which appellants may claim that they relied in making the purchase is the blank indorsement of the certificate. But the law is that the blank indorsement on a share certificate of stock does not, in itself, estop an owner from claiming it, in a case where it has been stolen from him and has passed into the hands of an innocent holder for value. A certificate representing shares of stock is not negotiable paper in the sense that the title transferred by a thief to an innocent good-faith holder cannot be questioned. * * * We are also invited to hold, in effect, that share certificates of stock are negotiable instruments, and hence an innocent good-faith purchaser for value takes title as against the true owner, who has been deprived of possession by theft, because it is claimed that there was proven a custom among banks and brokers for certificates of stock with the transfer on the back indorsed in blank to pass from hand to hand without inquiry, the same as negotiable paper. A custom which runs counter to the settled and established law, is not to be adopted by the courts.’ Brannan's Negotiable Instrument Law, p. 11; Jones on Collateral Securities, § 461; Swim v. Wilson, 90 Cal. 126, 27 P. 33,13 L. R. A. 605, 25 Am. St. Rep. 110;O'Herron v. Gray, 168 Mass. 573, 47 N. E. 429,38 L. R. A. (N. S.) 180, Ann. Cas. 1913C, 1115;People v. Martin, 116 Mich. 446, 74 N. W. 653;Millard v. Green, 94 Conn. 597, 110 A. 177, 9 A. L. R. 1610;Bangor Electric Light & Power Co. v. Robinson (C. C.) 52 F. 520;East Birmingham Land Co. v. Dennis, 85 Ala. 565, 5 So. 317,7 Am. St. Rep. 73; Perkins v. Cowles, 157 Cal. 625, 108 P. 711,137 Am. St. Rep. 158, 30 L. R. A. (N. S.) 283;Clark v. American Coal Co., 86 Iowa, 436, 53 N. W. 291,17 L. R. A. 557;Farmers' Bank v. Diebold Safe & Lock Co., 66 Ohio St. 367, 64 N. E. 518,58 L. R. A. 620, 90 Am. St. Rep. 586;Scollan v. Rollins, 173 Mass. 275, 53 N. E. 863,73 Am. St. Rep. 284;Schumacher v. Greene-Cananea Copper Co., 117 Minn. 124, 134 N. W. 510,38 L. R. A. (N. S.) 180 (see extensive note to this case in Ann. Cas. 1913C, 1117).

Union Trust Co. v. Frederick M. Oliver, Trustee in Bankruptcy, etc., 214 N. Y. 517, 108 N. E. 809, is cited by the dissenting opinion as sustaining its view. That case is not in point, for the reason that the acts of Clarke, who wrongfully used the certificates as collateral, did not constitute larceny. It is quite likely that New York does not have the statute which we have.

The case of the City of Adrian v. Whitney Central National Bank, 180 Mich. 171, 146 N. W. 654...