Rich v. Boyce

• Decision Date: 28 January 1874
• Citation: 39 Md. 314
• Parties: THOMAS R. RICH v. JAMES BOYCE.
• Court: Maryland Court of Appeals

39 Md. 314

THOMAS R. RICH v. JAMES BOYCE.

Court of Appeals of Maryland

January 28, 1874

APPEAL from the Circuit Court for Howard County.

On the 18th June, 1870, Thomas R. Rich borrowed from James Boyce $4,500, and gave him his promissory note, which was in the following terms:

BALTIMORE June 18th, 1870.

(U. S Rev. Stamp, $2.50.)

$4.500.

Ninety days after date, I promise to pay to the order of myself forty-five hundred dollars, secured by 300 shares Parkersburg Branch R. R. Co. stock, with authority to sell, if not paid at maturity. Value received.

T. R RICH.

Endorsed: T. R. RICH.

These 300 shares of stock were represented by a certificate of stock numbered 727. The certificate was handed to Boyce. On it was endorsed a power of attorney signed by Rich authorizing Boyce to have it transferred to his own name on the books of the Company. On the 20th of June, 1870, Boyce delivered the certificate, (No. 727,) to John L. Crawford the Treasurer of the Company, and received therefor a certificate made out in his own name for 300 shares, and numbered 747, as follows:

Number 747. Shares 300.

Parkersburg Branch Rail Road Company.

This certifies that James Boyce is owner of three hundred shares of the capital stock of the Parkersburg Branch Rail Road Company, transferable only in person or by attorney, on the books of the said Company, on return of this certificate. In testimony whereof, the said Company have caused their seal to be affixed to this certificate, and the same to be signed by their President, and countersigned by their Treasurer, at Parkersburg, W. Va., this 20th day of June 1870.

(U. S. Int. Rev. Stamp, 25 cents.)

(Seal's Place.)

P. G. VAN WINKLE,

President.

JNO. L. CRAWFORD,

Treasurer.

The note not having been paid at maturity, suit was instituted in the Superior Court of Baltimore City, by Boyce against Rich, on the 12th November, 1870.

The declaration contained the common counts and a special count in the following words:

7th. That the defendant on the 18th day of June, 1870, by his promissory note now over-due, promised to pay to the order of himself, and he endorsed the same to the plaintiff, $4,500, ninety days after date, but did not pay the same.

To the declaration was appended the promissory note and an affidavit under the Act of 1864, ch. 6. Only the first Christian name and initial letter of the defendant's middle name (Thomas R.,) was given in the declaration, but the name appeared in full, (Thomas R. Rich,) in the affidavit. The defendant pleaded that he never was indebted as alleged, and made oath to his plea as required by the Act of 1864, ch. 6. The case was, on the 6th of April, 1871, on affidavit and suggestion of the defendant, removed to the Circuit Court for Howard County. The transcript of the record sent to Howard County recited in the beginning that Thomas R. Rich had sued out the writ instead of James Boyce. A plea of set-off was filed in Howard county, and the plaintiff demanded the particulars of the set-off. In response, the defendant exhibited a claim for 300 shares of Parkersburg Branch R. R. Company stock, valued at $15,000. Issue was joined. On the 2nd of April, 1872, the defendant filed in the Circuit Court for Howard County a bill of discovery, with interrogatories to Boyce attached. On the 6th of April, 1872, an answer was filed to the bill of discovery, and on the 10th of the same month an additional answer was filed. The case was called for trial April 10th, 1872.

First Exception.--The defendant then moved the Court to give judgment by default in his favor, under Art. 75, sec. 69 of the Code of Public General Laws, because the answer to the bill of discovery was insufficient. The Court overruled the motion, and the defendant excepted.

[The Reporter does not think it necessary to set out the bill, interrogatories and answers.]

Second Exception.--The defendant then moved to remand the transcript of the Record to the Superior Court of Baltimore city for correction, on the ground that it appeared by the transcript that Thomas R. Rich, the defendant, sued out the writ. This motion the Court, (HAMMOND, J.,) overruled, and the defendant excepted.

Third Exception.--The defendant then withdrew the pleas filed in the case, and demurred to the declaration on the ground that it no where set forth the defendant's name. This the Court overruled and the defendant excepted.

Fourth Exception.--The defendant then moved that judgment be entered for the defendant, because of the insufficiency of the answer of the plaintiff to the interrogatories filed by defendant on the 2nd of April, 1872, under the provisions of the Code, Art. 75, sec. 69. This motion the Court overruled and the defendant excepted.

Fifth Exception.--The plaintiff then offered in evidence the promissory note, set out above.

To its admissibility the defendant excepted, because the note so offered in evidence varied from, and was a different note from the one specified and described in the declaration. This objection the Court overruled, and the defendant excepted.

Sixth Exception.--The plaintiff then offered proof, that he loaned to the defendant the money on which said note was given, on the collateral security of 300 shares of the stock of the Parkersburg Branch Railroad Company, on the 18th of June, 1870; that the certificate (of the stock so pledged by the defendant,) was No. 727; that on the back of said certificate, when delivered to the said plaintiff, was a printed power of attorney in the form generally used on certificates of stock, with a blank therein for the name of the attorney authorizing the transfer of the stock--which power of attorney was signed by the party in whose favor said certificate was given; that two days afterwards, on the 20th of June, the plaintiff took this certificate of stock to the office of the Company, surrendered it, and had a new certificate of stock issued to him in his own name; that this new certificate is still in his possession, and is numbered No. 747. And the defendant, on the cross-examination of the plaintiff, proved that the par value of that stock was $50 a share, and the market value, on the said 18th of June, was from $22 to $23 per share. The defendant then offered proof by the defendant's testimony, that the market value of the stock, at the time it was pledged, was $23 50 cts. a share, and on the said 20th day of June, was $23.50 a share. To the admissibility of which evidence the plaintiff objected; the Court sustained the objection, and the defendant excepted.

Seventh Exception.--The defendant then offered to prove that he had never at any time, or in any manner, authorized the plaintiff to surrender the stock pledged, or to have it reissued to the plaintiff in his own name; to the admissibility of which proof the plaintiff objected; the Court sustained the objection, and the defendant excepted.

Eighth Exception.--The defendant then offered to prove that the parties to the suit were both brokers in the city of Baltimore, and to show that according to the usage of brokers in Baltimore city, it was not the right of parties holding stock in pledge as collateral security, to surrender the same to the Company issuing it, and have reissues in their own name; but the pledgee must retain the same as pledged until default, and if no default took place, return the identical stock as pledged, to the pledgor; to the admissibility of this proof the plaintiff objected, and the Court sustained the objection, and the defendant excepted.

Ninth Exception.--The defendant then offered evidence to prove that the plaintiff had never made a demand for the debt alleged to be due, and for the security of which the stock was pledged, nor offered to return the stock on condition of the payment of said debt; to the admissibility of this proof the plaintiff objected, and the Court sustained the objection; to this ruling the defendant excepted.

Tenth Exception.--This was taken to the decision of the Court, granting the plaintiff's prayer and rejecting those of the defendant. The substance of the several prayers is shown in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER, ALVEY and ROBINSON, J.

Henry Stockbridge, for the appellant.

The facts of this case, as set forth in the evidence of the plaintiff and defendant, the pleadings in the cause, and in the note itself, clearly show that this transaction was one of hypothecation by way of pledge.

There is no sufficient evidence of authority to surrender to the Company or to sell the stock in question before the maturity of the note; but on the contrary the evidence of the defendant proves positively that no such authority was given, and in the absence of express authority, the act of the plaintiff in surrendering the original certificate of stock, and in taking out a new certificate, whether genuine or fraudulent, in his own name, without notice to the defendant, was, in law, a wrongful conversion of the pledge, and in his action upon the note, the value of the pledge at the time of such wrongful conversion, is properly a subject of set-off to the plaintiff's claim. As to notice necessary, in the absence of express authority to sell the pledge without notice, see Washburn vs. Pond, 2 Allen, 474; Wheeler vs. Newbould, 16 N. Y., 393; 2 Story Eq., sec. 1033; Md. Fire Ins. Co. vs. Dalrymple, 25 Md., 242.

In the present case the pledge was surrendered before the maturity of the note and without notice.

The measure of damages in trover is the value of the goods at the time of conversion; the same rule applies in this case in order to fix the amount of the set-off. Sterlin vs. Garritee, 18 Md., 468; Hepburn vs Sewell, 5 H. & J., 211; Md. Fire Ins. Co. vs....