105 N.Y.S. 305 | N.Y. App. Div. | 1907
Lead Opinion
Plaintiff obtained and held as collateral to the indebtedness of one Caleb B. Knevals to it three certificates of shares purporting to have been issued by the defendant, which had been fraudulently diverted by Knevals while he was its vice-president and “ Comptroller or Chief Executive Officer.” This action was brought upon the theory that the certificates were void, on the ground that they constituted an unauthorized over issue of shares, but that plaintiff, as an innocent holder, is entitled to recover the damages it has sustained on the ground that they were caused by the wrongful acts of the officers or agents of the defendant, and that as against such cause of action, the defendant is estopped from asserting that the certificates were issued without authority dr wrongfully diverted, notwithstanding the fact that they are void and unenforcible as certificates because they are in excess of the authorized issue.
The material' facts are not controverted. The plaintiff -is a national bank. . The defendant is a domestic cemetery corporation, organized and existing under the provisions of chapter 133- of the Laws of 1847, entitled “ An act authorizing the incorporation of rural cemetery associations” and the acts amendatory thereof and supplementary thereto.' On tlie 3lst day of May, 1864, shortly after its incorporation, the defendant purchased,and obtained con-" veyances of certain lands situate in the county of "Westchester, comprising a tract of 307.51 acres, for cemetery purposes, upon agreement to pay therefor to the owners, who numbered seventeen, one-half of the proceeds of all sales of lands or plots quarter-annually, and that the right to such proceeds should be represented by 1.2,500 equal shares to- be distributed among the owners according to their respective interests which Were therein -specified. The- defendant thereafter prepared for execution and delivery to the owners in fulfillment of the agreement, certificates certifying that the holder was entitled to a specified number, according to their respective proportions, of “shares in the Woodlawu Cemetery transferable only .on the books of the cemetery association- upon the surrender ” thereof, and caused the same tó be delivered-to the persons entitled thereto. The agreement under which the lands were purchased provided that one or more certificates should be issued to each owner for his shares and “ said shares shall be personal property and may be "transferable
Said Caleb B. Knevals was one of the original incorporators of the defendant and one of the owners of the lands conveyed to it and as such owner was 'entitled to and received certificates for shares representing his proportionate interest. On the 26th day of May, 1869, he was elected vice-president of the defendant, and on the 13tli day of September, 1871, he was appointed “ Comptroller or Chief' Executive Officer,” and he continued to hold said office •and position and had general charge of the- affairs of the. defendant until August 2, 1899.. In the year 1893 William A. Booth was president, and Charles P. Knevals was assistant treasurer of the defendant; and they were authorized to sign and issue new certificates in place of certificates surrendered for cancellation.- They signed a certificate, dated April 3,1893, being No. 624, and another dated April 8, 1893, being No. 606, and a third dated July 19,1893, being No. 612, in blank as to the number of shares and in blank as to the owner, and left the same with said Caleb B. Knevals to be. filled out as to the number of shares and owner and to be delivered to the person entitled thereto on the surrender of certificates for transfer and cancellation. Shortly thereafter and during the same year said Caleb B. Knevals, without authority and without the surrender of any certificate for transfer or cancellation, and ■ without transfer to him on' the books of the company or otherwise, of any outstanding certificate, wrote his own name in these certificates as the owner, and he likewise filled in the number of shares as follows: One hundred each in certificates Nos. 624 and 606 and twenty-four in certificate No. 612. By these "fraudulent acts of Knevals the total number-of shares-of the defendant was increased from 12,500 to 12,724: With the. exception of the dates and number of shares these certificates were all in the same form and. were like the genuine certificates issued by the defendant. It will suffice, therefore,
“ Whole Number of Shares, 12,500.
No. 624. 100 Shares.
The Woodlawn Cemetery.
Organized ( ) Dec. 29th, 1863.
“ This certifies that Caleb B. Knevals is entitled to One Hundred, shares in The Woodlawn Cemetery, transferable only on the books of the Cemetery Association, upon the surrender of this certificate.
“ In testimony whereof the Woodlawn Cemetery have caused this Certificate to be signed by their President and Countersigned by their Treasurer, in the City of New York, this 3rd day of April, 1893.
“ Countersigned
' “CHAS. P. KNEVALS, Asst. Treasurer.
“ WM. A. BOOTH, President.”
He attached to each certificate a sheet of paper — being the printed form of power of attorney provided by defendant for use in connection with genuine certificates — on which he had written, in a printed blank power of attorney, the number of shares to correspond with the certificates and had executed the power of attorney in blank. The date of the execution of the power of attorney attached to_pertificate No. 624 was the-same as the date of the certificate; but the power of attorney relating to certificate No. 606 purports to have-been executed on the 10th of April, 1895; as no point is made of this it is probable that there is a clerical error in tiie printed record arid that the year is 1893, and that relating to certificate No. 612 purports to have been executed on the 26th of October, 1893.
During.the same year that these certificates were issued, or shortly thereafter, said Caleb B. ‘Knevals pledged them to the plaintiff as security for a loan and he subsequently redeemed them. The officers of the plaintiff were familiar with the signatures of the officers of the defendant .who signed the certificates and knew that they were genriine. Genuine certificates in the defendant- appear to have been pledged, bought and sold as if they were certificates of stock in a business corporation. They were very, valuable and had a market value which was somewhat irregular. The - plaintiff fre
Tlie issue of these spurious certificates to Knevals was entered on . the books of the defendant at the time he filled in- the' blanks; and an examination of the certificate book of shares of the defendant at anytime thereafter would have revealed the fact that they had been issued without the surrender of' any outstanding certificate, and that there had been an. unauthorized over- issue of . shares. . The plaintiff did not own any shares in defendant, and neither was familiar with the contents of its records nor had access thereto. It does not appear that the other officers' or shareholders of the defend
. At the time of such, refusal by the defendant the market value in the city of New York of genuine shares in defendant was $160 per share, and their market value had equaled that sum- at all times since plaintiff last accepted the certificates in pledge.The issuance of the certificates to landowners in payment for the land was fairly contemplated. and authorized. The statute under which defendant was incorporated required cemetery associations to appropriate and apply one-half, at least, of the proceeds from the sales of the lots to the payment of the purchase price of the lands, and to use the residue in improving the cemetery grounds (Laws of 1817, chap. 133, § 7), and authorized the cemetery associations to agree with the owners from whom lands should be purchased to pay therefor one-half of the proceeds from the sales of cemetery lots. (Laws of 1853, chap. 122, § 1.) It was manifest that the period during which such an agreement would continue would be quite indefinite; and that it would likely be very' long. Evidently it was impracticable to give back a.purchase-money mortgage, conditioned for the payment to the owners of one-half the proceeds of the sale of lots, with a provision for releasing lots from time to time as they
It is claimed that the plaintiff was negligent in not discovering that the certificates were not consecutively numbered, but it Was shown that' it is not unusual. or a circumstance of sus-' picion ..to see a certificate of stock in circulation of an earlier date of' a lower number than another. There is no • force in' the suggestion that as matter of law the plaintiff should. have
It is also contended that the plaintiff should have surrendered the certificates and have had the stock transferred to its name on the hooks of the company, but in taking certificates of stock in pledge that does,not appear to have been customary unless-requested by the customer.
Finally, it is claimed that the bank was negligent in not having the stock registered. It appears that on or about the 14th day of October, 1899, shortly before this loan was made, the defendant duly designated the Fourth Eational Bank registrar and transfer agent of certificates. The president of the plaintiff testified that the registration of stdck is “ an additional verification of the genuineness of the certificates; that is the very purpose and object of registration.” A question of fact was presented as to whether the president or cashier or the acting loan clerk in this transaction, which was conducted' by him and the president, had notice that transfers could be registered, and the court has found in favor of the plaintiff on that issue. It appears that plairitiff’s loan clerk, who, however, was absent at the time of this transaction, and perhaps another employee of the plaintiff, were aware that the Fourth Eational Bank had been appointed transfer agent and registrar by the defendant. They acquired this knowledge in acting for customers of the bank and without the authority or direction of its officers, and it is .not clear that the bank would be chargeable in this transaction with the knowledge thus acquired by them; but however that may be, the plaintiff was not obliged as matter oflcm to have these certificates registered.- The trial court was justified in finding that the plaintiff,- lcnowing-the genuineness of the signatures to those certificates, and having made a loan to Knevals thereon
It follows that the judgment should'be affirmed, with costs.
Patterson, P. J.," and Ingraham, J., concurred ;■ S'cott¡ J.? dissented'. '
Dissenting Opinion
■ While I freely concede that the question involved in this appeal is a close one and the considerations, advanced by Mr. Justice Laughlin for an affirmance of the judgment are very persuasive, I cannot avoid a feeling that to affirm it is to give effect rather to the form than to the real nature of the certificates issued by the defendant, Irrespective of the form in which the certificates were dráwn they were not certificates of stock, but merely promises to pay in the future. The defendant had no capital stock and could have none, and' if in issuing certificates in the form which it adopted it had attempted to create capital stock or to issue certificates representing capital stock it would have undertaken to do that which it had no legal capacity to do. The plaintiff cannot and does not, as ' I understand, base atty claim to a recovery'upon the proposition that it was misled by the1 form of the certificate into believing that the defendant was a stock corporation • and ■ that the certificates represented actual stock. The defendant’s incapacity to issue stock and its obligation to pay to the persons from whom it had purchased lands one-lmlf of the receipts from sales of lots as received, were •matters of record incorporated into the statute of the State and. in .. dealing with apparent obligations issued by defendant the plaintiff
Judgment affirmed, with costs.
Concurrence Opinion
.1 concur with Hr. Justice Laughlin. While it is clear that this instrument 'was not in any sense a negotiable instrument it was a certificate issued by the corporation or its authorized officers which certified to the existence of a fact upon which the plaintiff relied, and under these circumstances the defendant is estopped from denying the existence of that fact. It seems to me that the case is directly within the principle established in Jarvis v. Manhattan Beach Co. (148 N. Y. 652 and the cases there cited), and that, being estopped from denying the facts upon the faith of which plaintiff ■ advanced ■ its money, the defendant was liable.