Mccalla v. Pclark

• Decision Date: 31 July 1875
• Citation: 55 Ga. 53
• Parties: Charles P. McCalla, plaintiff in error. v. Horace P.Clark, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 53

Charles P. McCalla, plaintiff in error. v. Horace P.Clark, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Debtor and creditor. Tender. Pledge. Conversion. Pleadings. Before Judge Hopkins. Fulton Superior Court. April Term, 1875.

McCalla brought complaint against Clark for a certificate representing one hundred and twenty shares of the stock of the Atlanta Ice Manufacturing Company, alleged to be of the value of $2,000 00. The defendant pleaded the general issue, and especially that said stock was transferred to him as collateral security for the loan of $413 00, besides interest; that he had been compelled to pay assessments thereon to the amount of $180 00 to prevent the forfeiture thereof; that the sums ofmoney thus loaned to the plaintiff, and advanced for *his benefit, have not been refunded; that the plaintiff is insolvent, and the defendant will lose the amounts advanced as aforesaid unless he shall be enabled to subject the said stock to their payment; that, therefore, he prays judgment against the plaintiff for the said several sums of money and interest, and that said certificate of stock be directed to be sold for the purpose of refunding the same to defendant.

The plaintiff moved to strike the special plea of the defendant. The motion was overruled, and he excepted.

The evidence presented the case made by the special plea, with the following additional facts: Long after the maturity of the note given by the plaintiff to the defendant for the loan of money, to secure which the stock was transferred, the plaintiff tendered the amount due on such note, with interest, and demanded his stock. The defendant refused either to receive the money or to deliver the stock, upon the ground that the same had become forfeited to him on account of the failure of the plaintiff to meet his note at maturity. Subsequently, on the same day, after consultation with counsel, the defendant offered to return to plaintiff the stock if the latter would pay to him the amount due on the aforesaid note, with interest, and also $120 00 which he had been compelled to pay in response to assessments made on said stock while in his possession. This the plaintiff failed to do. Had not said assessments been paid by the defendant, the stock would have been forfeited to the company under its rules.

The court charged the jury that the refusal of the defendant to deliver the stock upon the tender being made as above stated, claiming the same to have become his individual...