Nakdimen v. Baker, 11190.

• Decision Date: 12 December 1938
• Docket Number: No. 11190.,11190.
• Parties: NAKDIMEN v. BAKER.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F.2d 195 (1938)

NAKDIMEN v. BAKER.^*

No. 11190.

Circuit Court of Appeals, Eighth Circuit.

December 12, 1938.

James B. McDonough, of Fort Smith, Ark. (George O. Patterson and Edward H. Patterson, both of Clarksville, Ark., on the brief), for appellant.

Harold R. Small, of St. Louis, Mo. (Thomas B. Pryor, of Fort Smith, Ark., Emmet T. Carter, of St. Louis, Mo., Pryor & Pryor, of Fort Smith, Ark., and Carter & Jones, of St. Louis, Mo., on the brief), for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment at law in favor of the appellee, plaintiff below, against appellant, defendant below. The appeal presents but one question necessary to its determination. Other questions are raised in argument, but since, in the view we take of the issues, the judgment must be reversed and the case remanded for a new trial, all minor and incidental matters will be passed over because they may not arise on the second trial.

The ultimate question is whether the action is in assumpsit for damages for breach of contract or in tort for damages for conversion of personal property. The lower court submitted the case to the jury on the theory that it is an action in tort for conversion. In this we think he erred.

The court correctly summarized the contentions of the parties in the following instruction: "Under the pleadings and the evidence it appears an agreement was entered into at Fort Smith, Arkansas, December 6, 1935, between the plaintiff, Baker, and the defendant, Iser Nakdimen. By this agreement Baker was to transfer his 200 shares of stock, each of the par value of $100.00, in the City National Company into a certificate for the same number of shares in favor of defendant, Iser Nakdimen's wife, Celia Nakdimen, and in consideration of this transfer Iser Nakdimen was to execute and deliver his three-year non-interest note for $13,125.00 with an option to renew for another two years, the terms of which note were fully agreed on; if the note was renewed the amount of the renewal was to be $13,700.00. The three-year note obligation was to be secured by the certificate in the name of Iser Nakdimen's wife and was to be endorsed by her before being pledged to secure the note. Pursuant to this agreement the three-year note was signed by defendant, Iser Nakdimen, the certificate of stock in favor of plaintiff, Baker, was surrendered and transferred into a certificate in favor of Celia Nakdimen and by plaintiff delivered to defendant, Iser Nakdimen, for endorsement by Celia Nakdimen, and a written consent was agreed on and delivered to Iser Nakdimen December 6, 1935; the certificate in favor of Celia Nakdimen was endorsed by her that evening along with the written consent that her certificate so endorsed might be used as a pledge to secure the payment of Iser Nakdimen's note for $13,125.00. The understanding was during the day of December 6, 1935, that the signatures would be obtained that evening and that the signed note, the Celia Nakdimen certificate endorsed and the consent of Celia Nakdimen signed would be delivered to plaintiff, Baker, the next day. Now, both parties agree that these are the terms of the contract. There is no dispute about that."

The plaintiff alleged that Nakdimen failed and refused to deliver the note and collateral on December 7 as he had agreed but that he converted them to his own use, and that he was indebted to plaintiff for the value of the 200 shares of stock in the City National Company. Before the trial the defendant moved the court to require the plaintiff "to declare whether he intends his suit to be one upon contract or one upon tort, and to elect upon which, whether contract or...