Richardson v. Busch

Decision Date30 June 1906
PartiesRICHARDSON v. BUSCH.
CourtMissouri Supreme Court

Lamm, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by William C. Richardson, administrator, etc., against Adolphus Busch. Judgment for defendant, and plaintiff appeals. Affirmed.

Rassieur, Schurmacher & Rassieur, for appellant. Nagel & Kirby, for respondent.

VALLIANT, J.

The petition states that the plaintiff is the public administrator in the city of St. Louis and that in that right he has taken charge of the estate of John C. De La Vergne, deceased, who at the time of his death was a resident of the state of New York; that De La Vergne in his lifetime, being the owner of 500 shares of stock in a New York corporation called the De La Vergne Refrigerating Machine Company, evidenced by two certificates for 250 shares each, delivered those certificates to the defendant Busch to indemnify him against his liability on a bond for $24,000 which he had signed as surety for the De La Vergne corporation at the request of De La Vergne in an attachment suit in the city of St. Louis against the corporation; that while the attachment suit was pending De La Vergne died in New York, and plaintiff in his official capacity as public administrator immediately took charge of the De La Vergne estate in Missouri; that thereafter the attachment suit was dismissed and Busch's liability on the bond ceased; that thereupon the plaintiff demanded of Busch the certificates of stock, but Busch refused to deliver the same "and wrongfully converted the said certificates and shares of stock to his own use," to the plaintiff's damage $50,000, for which sum he asks judgment. The court sustained a demurrer to the petition, and, the plaintiff declining to plead further, judgment for defendant was entered, and plaintiff appealed.

1. The first point made in the brief of appellant is that his authority as public administrator to take charge of the estate of the deceased De La Vergne cannot be questioned in a collateral proceeding. That is a correct statement of the law, but that rule of law is not involved in this case. The defendant is not in this case denying the authority of the plaintiff to sue for and recover anything that the deceased De La Vergne left in the way of an estate in Missouri; but he is denying that the stock in the New York corporation of which he holds the certificates was ever in Missouri, and therefore he says that it does not belong to the Missouri administrator. It is a question of title to the thing sued for, not the official character of the plaintiff.

2. It is also said that the petition charges a conversion of the stock, and, it is argued, the legal effect of that act was to change the character of the asset from stock in the corporation to a right of action for the tort, and that right of action exists where the wrongdoer is found. It is true the petition charges in general words a conversion of the stock, but in addition to the general charge it specifies how the act of conversion was done, and from the specific averments we find that the only thing the defendant ever had in his possession was the certificate of the stock, and what the plaintiff construes to be conversion consists alone in the refusal of the defendant to deliver to him the certificate when demanded. There is nothing stated in the petition from which the inference can be drawn that the defendant ever made any such use of the certificate as that the stock itself was lost to the estate. If the averments in the petition relied on to constitute a conversion really have that legal effect, then the conversion would be complete, even though the fact were that the defendant had delivered the certificate to the New York administrator, and that fact would be no defense to this action. Unless therefore, we are prepared to hold that, even though the defendant gave the certificate to the New York administrator (and that fact in the oral argument was admitted), still he was guilty of conversion of the stock, we cannot hold that the demurrer to this petition admits a state of facts on which the defendants would be liable as for conversion.

3. The real question in this case is, was this stock in Missouri when De La Vergne died? The certificate was here and in the hands of the defendant, and that is the only fact on which the plaintiff relies to sustain his claim. The corporation was in New York. To the learning and industry of counsel on both sides of this case we are indebted for an array of all the principal authorities supporting their respective contentions. We will not attempt a review of the authorities discussed, but will be content with citing some of them, referring the enquirer to the briefs themselves, which will be reported, for further light. To the general proposition that the certificate is not the stock, but the mere evidence of the ownership of the stock, there is no denial. Cook on Corporations, § 485; Thompson on Corporations, § 2348; Armour Bros. v. Bank, 113 Mo. 12, 20 S. W. 690, 35 Am. St. Rep. 691; Caffery v. Cole Co., 95 Mo. App. 174, 68 S. W. 1049; Jellenik v. Huron Copper Co., 177 U. S. 1, 20 Sup. Ct. 559, 44 L. Ed. 647. In Armour Bros. v. Bank, above cited, this court laid down the principle which practically settles the law of this case. In that case the bank held in St. Louis as custodian for the owner certificates of stock in a Texas corporation. In a suit by attachment against the owner a writ of garnishment was served on the bank, aimed to attach the stock. The court held that the stock was not attached. The court rested its decision on two propositions: First, that our statute prescribing the mode of serving writs of attachment and garnishment to reach stock in a corporation was intended only to reach stock in a domestic corporation, and no method was prescribed for reaching stock in a foreign corporation; second, that the stock itself was not within the state although the certificate was here. In discussing the second proposition the court, after quoting from some decisions, said: "But, be that right what it may, certificates of stock are not the stock itself. They are but evidence of...

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