Bryan v. Baldwin

7 Lans. 174 | N.Y. Sup. Ct. | 1872

By the Court—

Gilbert, J.

We agree with the court below, that the evidence did not make out a conversion of the stock. If the sale was ineffectual to change the title to the stock, such title remained vested as it was before the sale. The court acted on the assumption that the sale was made without notice to the defendant. If this assumption had been correct, the sale would have been a nullity, unless the defendant afterward ratified it. The defendant, however, denies the validity of the sale, and so in effect repudiates the transaction, while at the same time he seeks to make the plaintiff liable for a conversion of the stock, by means of that sale. This he cannot do. The law will not permit a party thus to blow hot and cold. If the defendant had a right to disavow the salé, his election to do so rendered it inoperative, and the stock would thenceforth be held by the plaintiff, upon the terms of the original deposit, viz., as security for the payment of the defendant’s indebtedness. When that should be paid, the defendant would be entitled to a return of the stock.

But we are of opinion that the sale was in all respects regular, and that thereby the title to the stock became legally vested in the plaintiff. ■ The only objection taken against the validity of the sale rests upon the allegation that the defendant was not properly notified thereof. The evidence uncontradicted is, that a formal written notice of the sale, with a" copy of the advertisement thereof annexed, signed by the auctioneer by whom the sale was made, was left at the place of business of the defendant, with a person in charge thereof, twu days before the sale. The defendant testified that he had no recollection of having received the notice. This may have been owing to his own act. Whether it was or not, the notice ought to be held sufficient, in the absence of any proof, creating an obligation on the plaintiff to adopt another manner of service. A notice of the dishonor of a promissory note, left at the dwelling or place of business of the indorser, is sufficient to charge the latter (1 Pars, on Notes, chap. 12, § 3) upon the principle that if the person to whom the note is addressed is absent, it is to be presumed that he will leave some person charged with the care of his business, or at least some one between whom and himself there is a privity or confidence, (Granite Bank v. Ayers, 16 Pick., 392.) In the case cited, Shaw, Oh. J., lays down the rule that “ all notices at one’s domicile, and all notices respecting transactions of a commercial nature at one’s known place of business, are deemed in law to be good constructive notice, and to have the legal effect of actual notice.”

No argument is needed to show that such a rule, is approved by good sense, and indeed is founded in commercial necessity. If the defendant left no one at his place of business to attend to his affairs, it is and ought to be his own loss.

The judgment should be affirmed, with costs.

Judgment affirmed.