Sackville v. Wimer

• Court: Colorado Supreme Court
• Writing for the Court: CAMPBELL, J.
• Citation: Sackville v. Wimer, 76 Colo. 519, 233 P. 152 (Colo. 1925)
• Decision Date: 02 February 1925
• Docket Number: 10917.
• Parties: SACKVILLE v. WIMER.

233 P. 152

76 Colo. 519

SACKVILLE v. WIMER.

No. 10917.

Supreme Court of Colorado

February 2, 1925

Department 3.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by George L. Sackville against N. A. Wimer. Judgment for defendant, and plaintiff brings error.

Affirmed.

Carl Cline and Ernest Burck, both of Denver, for plaintiff in error.

J. W Kelley and Jean Keeley, both of Denver, for defendant in error.

CAMPBELL J.

This is an action by the plaintiff, Sackville, against N. A. Wimer in his individual capacity, for converting to his own use certain certificates of corporate stock alleged to be the property of the plaintiff.

The plaintiff's theory of the action is, to establish which his evidence was directed, that a corporation, Wimer & Co. of which the defendant is president, being at the time engaged in the business of a stockbroker, bought for the plaintiff, its customer, certain certificates of stock on the partial payment plan; the first payment in cash having been made, the balance to be paid in 20 equal monthly installments. Upon the plaintiff's failure to pay one of the installments and interest, the time for payment thereof being extended, and plaintiff not having at the end of that time, the defendant sold the stock on his own account on a rising market. The plaintiff's contention is that the transaction in question, being a purchase by a broker for his customer on the partial payment plan, the transaction was, in substance, a purchase on margin and, being so, the stock became the plaintiff's stock at the time of purchase, and that as defendant could not sell for a failure of the customer to pay additional installments, except on a falling market, the sale of the stock was a conversion of plaintiff's property for the value of which at the time of the conversion he is entitled to damages. Plaintiff invokes the usual rule that, in a purchase on margin by a stockbroker for a customer, the title of the stock at once vests in the customer, and that the broker may only sell on a falling market in case the customer refuses to pay the balance of the purchase price, or keep his margin good, and that, where the broker sells the stock and cannot deliver other stock of the same kind, the customer upon demand for delivery is not obliged to tender to the broker the balance due, but may sue for conversion.

If it be assumed, as we do, that in a case such as plaintiff says this transaction was, and that under such decisions as Richardson v. Shaw, 209 U.S. 365, 28 S.Ct. 512, 52 L.Ed. 835, 14 Ann.Cas. 981; Skiff v. Stoddard, 63 Conn. 198, 216, 26 A. 874, 28 A. 104, 21 L.R.A. 102; Tuckerman v. Mearns, 262 F. 607, 49 App. D. C. 153; Little v. McClain, 134 A.D. 197, 118 N.Y.S. 816; Barbour v. Sproul, 239 Pa. 171, 179, 86 A. 714; Sproul v. Sloan, 241 Pa. 284, 88 A. 501, Ann.Cas. 1015B, 941; Content v. Banner, 184 N.Y. 121, 76 N.E. 913, 6 Ann.Cas. 106; and Markham v. Jaudon, 41 N.Y. 235--perhaps the leading case, an action in conversion lies, still upon the findings of fact by the trial court, which are sustained by the evidence, no such case has been made here as requires the application of the rules laid down in these cases. The difficulty with the plaintiff's theory is that the facts as found by the trial court do not support his theory. Disregarding the objection of the defendant that whatever action the plaintiff has, if any, is against the corporation, and not against its president, and for our purpose assuming that the decision should be as if the corporation itself was defending, the judgment of the court dismissing the action must be upheld.

The court in its findings first held that, if the evidence sustained the plaintiff's theory that the purchase was by a broker for a...