Suskin v. Hodges

• Citation: 4 S.E.2d 891,216 N.C. 333
• Decision Date: 18 October 1939
• Docket Number: 29.
• Parties: SUSKIN v. HODGES.
• Court: North Carolina Supreme Court

4 S.E.2d 891

216 N.C. 333

SUSKIN v. HODGES.

No. 29.

Supreme Court of North Carolina

October 18, 1939

Civil action to recover damages for the wrongful conversion of preferred stock and dividends thereon, heard on demurrer.

Louis B. Suskin, late of the City of Baltimore, Maryland, died January 12, 1935, leaving a last will and testament. As he owned property within this State, located in Beaufort County the Clerk of the Superior Court of Beaufort County appointed the defendant R. H. Hodges his administrator, c. t. a., under authority of C.S. § 1 (3). The pertinent facts, as alleged in the complaint, are fully set out in Suskin v. Trust Co., 214 N.C. 347, 199 S.E. 276.

The Court below entered judgment overruling the demurrer interposed by the defendant, and the defendant excepted and appealed.

W. B Guion, of New Bern, Rodman & Rodman, of Washington, and J. C. B. Ehringhaus and Chas. A. Poe, both of Raleigh, for appellant.

R. E Whitehurst and L. I. Moore, both of New Bern, for appellee.

BARNHILL Justice.

The defendant demurs for that: (a) it appears upon the face of the complaint that the cause of action, if any, arose under the laws of the State of Maryland and the plaintiff fails to plead any Maryland law under which the cause of action survives; and (b) it appears upon the face of the complaint that the plaintiff never at any time transferred, assigned or delivered the certificates of preferred stock to anyone, from which it is manifest that even if the defendant's intestate secured from the Overall Company a certificate for the same amount of stock, such did not and could not affect in any way, plaintiff's stock, or his legal right in reference thereto, or his right to dividends thereon.

It is clear that the demurrer cannot be sustained for the reason first assigned in the demurrer. When any question arises as to the law of any other state or territory, or of the United States, the Courts of this State are now required to take judicial notice thereof. Ch. 30, P.L.1931.

Does the statement of the plaintiff in his complaint that he received the certificates of preferred stock and that he has never transferred or assigned the same so negative the other allegations in the complaint as to defeat his alleged cause of action?

The deceased was a resident of the State of Maryland. The alleged tort, if committed at all, was committed in the State of Maryland. That the plaintiff's cause of action is controlled by the laws of that State is so well established that the citation of authority is not necessary.

Under the laws of that State, title to a certificate and to the shares represented thereby can be transferred only, (a) by delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby; or (b) by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Ch. 376, Laws of Maryland 1927, which repeals and re-enacts, in corrected form, sec. 51, Art. 23 of Bagby's Ann.Code of Public General Laws of Maryland.

It is further provided that: "the provisions of this section shall be applicable, although the charter or articles of incorporation, or code of regulations, or by-laws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferable only on the books of the corporation, or shall be registered by a registrar, or transferred by a transfer agent."

The provision contained in the Uniform Stock Transfer Act for the issuance of a new certificate to replace one lost or destroyed is not contained in the Maryland Statute. The only provision in its statute in relation to lost or destroyed certificate is contained in sec. 78 of Art. 23, Bagby's Code, and is as follows: "The directors of a corporation may, unless otherwise provided in the by-laws, determine...