Fowle v. Ward

| Mass. | Nov 15, 1873

Ames, J.

The only question raised upon this appeal is as to the propriety of adopting the time of the filing of the bill as the period for the valuation of the shares with which the defendant is to be charged.

If the defendant by his own wrongful act has incapacitated himself from returning the seventeen shares which he has undertaken to dispose of, he cannot complain if he is required to replace everything in statu quo, so far as it can be done. If the sale was unlawful and void as against the plaintiff, he is entitled to all the advantages that he could have had from the shares if they had not been sold at all. Among those advantages is the right of judging for himself whether to keep or to sell them, and as to the best time to sell, if he should see fit to sell them. To place him substantially in the same position as if the wrongful act of the defendant had not occurred, would require that he should recover for damages a sum of money which would enable him to purchase seventeen new shares to replace those which have been taken from him, with such additional sum as would indemnify him for the dividends which he has lost since the sale, and also an equitable allowance for interest. It is in vain for the defendant to insist that when he made the sale he obtained the full market price of that time. The plaintiff was not a party to that sale, and was not bound by it. The defendant had no right to make the sale. All that he could lawfully do was to hold the shares, and have them forthcoming for the true owner on demand. But instead of so doing, he by his own fault has caused the plaintiff to lose them, and the only equitable remedy is to replace them, or to enable the plaintiff to do so for himself. Sewall v. Boston Water Power Co. 4 Allen, 277. Emery v. Parrott, 107 Mass. 95" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/emery-v-parrott-6416444?utm_source=webapp" opinion_id="6416444">107 Mass. 95.

The argument for the defendant and the authorities cited on his behalf do not appear to us to be applicable to the circumstances of the case. In the common law action of trover, the rule of damages is undoubtedly the value of the chattel in controversy at the time of the conversion. So also in an action for non-fulfilment of a contract to deliver stock, the measure of damages would ordinarily be the value at the time when it should have been delivered, or if no time of delivery had been named in the contract, the time when it was demanded. But in the case before us the plaintiff seeks, and is entitled to have, the specific equitable remedy of being replaced in his original position. His claim is not damages for breach of a contract or for a wrongful conversion of property, but to compel the reconveyance of shares which ought to be in the defendant’s hands at this moment. 2 Story Eq. § 1263.

We see no ground for saying that there has been such laches on the plaintiff’s part as to interfere with his right to maintain the present suit. It appears that before selling the shares the defendant had full notice of the plaintiff’s claim, and of the defect of his own title. After assuming the responsibility of acting upon his own judgment, and setting the plaintiff at defiance, the defendant is in no position to complain that the suit was not commenced at once. Decree affirmed.