85 P. 519 | Or. | 1906
delivered the opinion of the court.
“There was no evidence introduced at the trial of any demand to repay any loan, or of any tender of any money by plaintiff to defendant.”
So that a consideration of the questions of averments and of proof of tender become important. In Halliday v. Holgate, L. R. 3, Ex. 299, one Bentley borrowed of the defendant a sum of money, to secure the payment of which he deposited scrip certificates for certain shares of stock in a mining company, Bentley became a bankrupt and absconded, whereupon the defendant, without demand or notice, sold a part of the certificates. The plaintiff, as the bankrupt’s assignee, not having tendered any of the debt, brought an action of trover against the defendant, to recover the value of the shares disposed of, and it was held, affirming the decision in Donald v. Suckling, L. R. 1 Q. B. 585, that, assuming the sale to be wrongful, as the immediate right to the possession of the shares of stock was not by the sale revested in the plaintiff, he could not maintain trover, either for the whole value of the shares or for nominal damages, thereby substantially overruling the decision in Johnson v. Stear, 15 C. B. (N. S.) 330. In Halliday v. Holgate, Mr. Justice Willes, speaking for the Court of Exchequer Chamber, in discussing the question, says: “It is true the pledgor has such a property in the article pledged as he can convey to a third person, but he has no right to the goods without paying off the debt, and until the debt is paid off the pledgee has the whole present interest. If he deals with it in a manner other
In Gortelyou v. Lansing, 2 Caines’ Cas. 200, however, a different rule was adopted where it was held that, if a pledgee sells the pledge before application is made to redeem it, he is answerable in damages for the value of the property converted, and that it is not necessary in such case to make an actual tender of the sum due, to secure the payment of which the property was delivered to the pledgee. In deciding that case Mr. Justice Kent, assigning a reason for the conclusion thus reached, observes: “But when one party has incapacitated himself to perform his part of the contract, there is no need of the other coming forward at the time to make a tender, or to show himself in a capacity to pay, because it would be a nugatory act which the law will never require. If the one party discharges the other frpm a performance, by saying he will not perform on his part (and voluntarily and notoriously rendering himself unable to perform his part is equivalent to such discharge), it is well understood that it is not necessary for the other party to go forward.” The rule established in that pioneer case is tersely stated by Mr. Milburn as follows: “If the property has been converted by the pledgee, no tender of the debt secured need be made by the pledgor before bringing an action against the pledgee”: 22 Am. & Eng. Enc. Law (2 ed.), 874. Judge Story, "in his work on Bailments (8 ed.
The pledgee impliedly agrees faithfully to hold the pledge until the conditions have been performed upon the faith of which the choses in action, goods, or personal chattels have been delivered to him. If, in violation of his trust, he sells or disposes of the pledge, thereby putting it out of his power to return the property, it would be useless to impose upon the pledgor the burden of tendering to the pledgee the payment of the debt, or the performance of the duty before he could maintain an action against the pledgee for the damages sustained by reason of the conversion, when it would be impossible for the latter to discharge the obligation which he had undertaken. When a pledgee, by his overt act, violates the , terms of his agreement, so that it cannot be specifically en-, forced, he necessarily severs the fiduciary relations he assumed towards the pledgor, «whose remedy against him in this form of an action for the injury sustained, though treated as one for conversion, is in reality, founded on the breach of the contract: Glidden v. Mechanic’s Nat. Bank, 53 Ohio St. 588 (42 N. E. 985, 43 L. R. A. 737.)
These considerations necessitate an affirmance of the judgment, which is ordered. Appirmed.