Menardi v. Wacker

• Decision Date: 03 December 1909
• Docket Number: 1,884.
• Citation: 105 P. 287,32 Nev. 169
• Parties: MENARDI v. WACKER et al.
• Court: Nevada Supreme Court

105 P. 287

32 Nev. 169

MENARDI v. WACKER et al.

No. 1,884.

Supreme Court of Nevada

December 3, 1909

Appeal from District Court, Washoe County.

Action by J. B. Menardi against William Wacker and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Jas. T Boyd and A. N. Sailsbury, for appellants. Cheney, Massey & Price, for respondent.

SWEENEY J.

This action was commenced in the Second judicial district court at Reno, Nev., on May 2, 1907, for the recovery of 200 specified shares of stock of the Goldfield Consolidated Mines Company, and 100 shares of Goldfield Combination Fraction Mining Company stock, and, in case the return of the specified stock could not be had, for the recovery of the value of the stock and $500 damages for the wrongful taking and conversion of the said stock. The cause was tried on the 30th day of September, 1908, before the court, without a jury, and on the 2d day of November, 1908, the court rendered its judgment directing the return of the stock to the plaintiff, and, in case the stock could not be had, then judgment in the sum of $1,270, the value of the stock.

The testimony in this cause shows: That at the time alleged in the complaint W. L. Cox & Co. were engaged in a stock brokerage business in Reno, the firm consisting of W. L. Cox J. B. Menardi, Claude Smith, and Joe J. Kerrick. A. C. Marsh was the cashier and manager of said company, and with the firm's money bought the stock in question and charged it upon the books of the company to the "stock" account of said company, and distinguished from the "customers"' account, wherein the stock purchased for customers was charged. That the defendants were running a saloon and gambling house in Reno, and that between 11 and half past 1 o'clock on the evening of March 16 1907, Marsh, who was drinking and gambling, and known to be in the employ of the company by the defendant Wacker, from time to time, during the time mentioned, secured from defendant Wacker on his checks the amount of $2,000. That Marsh wanted to gamble more; but the defendant stopped him. On the following morning, Marsh sent word to Wacker, by telephone, not to present his check, that he desired to fix the matter up. That Marsh told the defendant Wacker that he did not want him to come to the Cox & Co.'s place of business, and he did not wish to go to defendant's saloon, but wanted to meet him elsewhere. They designated Pollard's rooms in a lodging house as a meeting place, and there Marsh gave Wacker his 90-day note for the money and deposited the stock in question, which belonged to W. L. Cox & Co., and which Marsh got from the company as security for the note. Upon the return of Capt. Cox, who was absent in the East at the time, after an examination of the books, and after ascertaining Marsh's irregularities, and the facts of the transaction from Marsh, he thereupon demanded the return of the stock from defendants, which was refused. The testimony further shows that W. L. Cox & Co. never disposed of any of said stock certificates, nor authorized any one to dispose of them for or on behalf of their account. Following the well-established principle of law that a person has the right to follow, sue for, and recover his property wheresoever it may go or wheresoever it may be found, the lower court rightfully awarded judgment to the plaintiff.

In the amended complaint, plaintiff, after alleging that plaintiff's assignors and predecessors in interest were the owners of and entitled to the possession of the certificates of stock in question, alleged that the defendants wrongfully and unlawfully took possession of said personal property and deprived plaintiff's predecessor and assignor in interest of its possession. The answer of the defendant denied all of the...