Pressman v. Merrill Lynch, Pierce, Fenner & Beane

• Decision Date: 09 December 1960
• Citation: 113 Ohio App. 70,170 N.E.2d 762
• Court: Ohio Court of Appeals
• Parties: , 85 Ohio Law Abs. 129, 17 O.O.2d 74 Glorla Hershey PRESSMAN, Plaintiff-Appellee, v. MERRILL LYNCH, PIERCE, FENNER & BEANE, Defendant-Appellant.

Page 70

113 Ohio App. 70

170 N.E.2d 762, 85 Ohio Law Abs. 129, 17 O.O.2d 74

Glorla Hershey PRESSMAN, Plaintiff-Appellee, v. MERRILL LYNCH, PIERCE, FENNER & BEANE, Defendant-Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 9, 1960.

Morton M. Stotter, and John A. Elden, Jr., Cleveland, for plaintiff-appellee.

Jones, Day, Cockley & Reavis, Cleveland, for defendant-appellant.

KOVACHY, Judge.

This appeal comes to this court on questions of law from a judgment of $3,982.08 and costs entered for the plaintiff in the Court of Common Pleas of Cuyahoga County. The cases was tried to the court, a jury having been waived. Motions for judgment were made by the plaintiff and the defendant at the close of all the evidence. Defendant's motion was overruled. Plaintiff in her amended petition alleged, inter alia, that the defendant sold securities owned by her and in its possession without her consent, approval, direction or knowledge, and distributed the proceeds to someone other than herself or her nominee.

Defendant in its amended answer denied that it has in its possession or that it sold any securities owned by the plaintiff but admitted that it did sell the stock in question and that it did so without the consent, approval, direction or knowledge of the plaintiff.

There are the controlling facts: Gloria Hershey Pressman was living in Cleveland during December, 1953; her mother and aunt at that time lived together at 1611 Meridian Avenue, Miami Beach, Florida; some days before Christmas of that year, Gloria received a letter from her aunt with a check enclosed for from $25 to $30 containing the statement that the amount was small because she, the aunt, was going to buy her some stock as a gift; a 'Statement of Security Account' with Merrill Lynch, Pierce, Fenner & Beane, the defendant shows an account for the period ending January 29, 1954, under the caption 'Miss Gloria Hershey, 1611 Meridian Avenue, Miami Beach, Fla.' and contains the following entries:

                                                       Debit         Credit
                                                       --------------------
                1/21 Bought or Received 100 Florida
                        Power Corp.                    $2904.38
                1/22 Deposit (1/21)                                  $2904.38
                1/29 Sold or Delivered 100 Florida
                        Power Corp.                                  $2928.15
                Balance                                              $2928.15 
                

a second "Statement of Security Account" for the

period ending February 26, 1954, under the caption:

"Miss Gloria Hershey % Samuel Rand Attorney

Olympia Building Miami Fla" has these entries:

                                        Debit           Credit       Balance
                                       -------------------------------------
                     Balance Jan 29th                  $2928.15
                2/8 Check 2 5          $2928.15                           .00 
                

a check in the amount of $2928.15 was issued by the Miami Beach, Florida Office of the defendant on February 5, 1954, to the order of Gloria Hershey; the back of the check bears the purported signature of Gloria Hershey and the signature of Leona Sacks; the signature of Leona Sacks was genuine, that of Gloria Hershey was not; Leona Sacks is the aunt of Gloria Hershey and a sister of her mother; the sisters lived in Florida together from 1948 until the latter part of January, 1954, when they separated because of a quarrel; the Samuel Rand designated in the second 'Statement of Security Account' was the attorney for Leona Sacks; Gloria Hershey first learned of the existence of these transactions in May, 1955, while visiting her mother in Florida; her mother at that time showed her a statement from the defendant which had been received by her in March of 1954; the mother never transmitted the information to her daughter; Gloria Hershey at no time discussed the matter with her aunt; Gloria Hershey had lived in Florida during the year 1952 until the middle of 1953 but never at 1611 Meridian Avenue, Miami Beach; Gloria Hershey became Mrs. Wesley Pressman in May, 1954; neither the mother nor the aunt appeared as witnesses during the trial of this case; Gloria Hershey corresponded with the defendant after May, 1955; Gloria Hershey testified that she laid claim to the stock as a gift from her aunt.

Appellant's assignment of error in this court is:

'The trial court erred in failing to enter judgment for defendant on the ground that plaintiff did not sustain her burden of proof.'

Plaintiff, in essence, alleged in her amended petition that the defendant was guilty of conversion when it sold stock which she owned without her consent or knowledge.

Inasmuch as the plaintiff claimed the ownership of the stock by virtue of a gift inter vivos and the defendant in its answer admitted selling the stock in question without the consent or knowledge of the plaintiff, the only question for determination was whether the plaintiff owned the 100 shares of Florida Power Corporation stock as a result of a gift inter vivos from her aunt when the same was sold by the defendant without plaintiff's consent or knowledge.

If she did, the defendant was guilty of conversion and was responsible to her for damages, and if she did not, her claim against the defendant was without substance or fact and the defendant was entitled to a judgment in its favor as a matter of law.

The laws of Florida were applicable in the...