30 How. Pr. 360 | N.Y. Sup. Ct. | 1866
The facts in this case are so free from difficulty that the only questions calling for much consideration are the rules of law as applicable to them. The questions raised by the parties on the trial, are novel, and yet are of frequent occurrence in the business of brokers. There can be no doubt that the defendants, under the stock note given to them, had authority, after default had been made by George 0. Genet, in the payment of his note, to sell the stock either at public or private sale, and without notice to Genet. This was the express provision of the contract as contained in the stock note given by Genet. Excluding the authority contained in that note, the defendants could not have sold the stock without notice of the time and place of sale; and in such case the sale must be public at the time and place mentioned in the notice. But when the parties agree to have the pledge sold at public or private sale without notice, the party pledging the property can hot insist' that he should have any notice. This was held in Milliken v. Dehon, (27 N. Y. Rep. 364.) Ho question therefore can arise here as to the mode of sale, or want of notice; and if the proper demand of payment was made and the note had become payable so as to warrant the sale of the pledge, no objection to the mode of sale or the disposition of the property can be sustained. In the case last cited, the terms of the contract were: If a decline in the value of the property took place, and the plaintiff failed, when demanded, to deposit in cash sufficient to cover such decline, the pledgee might sell. The court in that case, by Wright, J. says: The only question was one of fact, viz. whether the plaintiff had made default
But it is said that the notice given to Genet that he must pay up the loan was equivalent to a demand, and therefore the want of a demand of payment of the note became immaterial. If this is to be considered as a notice to redeem the property pledged to avoid a sale, it is clearly defective as not giving a reasonable time within which to make such payment. It may be conceded that a notice to redeem the stock pledged, by payment of the amount loaned, would be sufficient, and would operate to the same extent as a regular demand of payment of the note; but when that course is resorted to, the rule which requires a reasonable time to redeem must be adopted. The creditor can not, while the debt is not due, sell the pledge without resorting to the old common law rule of notice with a reasonable time within which to make payment, because the contract does not apply to such a case. That dispenses with notice of sale only when a proper demand has been made, and if he can sell without that demand, it can only be by following the common law rule without regard to the other provisions of the contract. For such a purpose the common law rule would not be modified by the contract, but the creditor would be required to give a notice to the debtor to redeem the pledge, and allow a reasonable time within which to provide for such redemption. It is not pretended that any such notice was given, but the defendants rely on the demand and authority
It is urged that Genet gave his assent to the sale at the time the demand was made, hut I do not consider any such fact as made out by the evidence. He certainly objected to the sale, and when told he must make the payment, expressed his inability to do so within the time proposed. His remark that he saw no other course but to sell, must be taken in connection with the fact that payment was demanded immediately, and the knowledge of his inability to comply on. so short a notice. His answer was nothing more than, if you will sell on so short a notice, I can do nothing in the way of payment to prevent it. I do not think this can be considered a consent to sell, if the defendants had not done what the law required to authorize the sale.
An objection was taken on the trial to the sufficiency of the assignment, on the ground that the conversion had taken place prior to its execution, and as it only transferred the stock and Genet’s interest therein, the assignee could not maintain an action for the tort which had been committed previously. The cases of Gardner v. Adams, (12 Wend. 297;) Hall v. Robinson, (2 Comst. 293; and McKee v. Judd, (2 Kern. 622,) are relied upon as authority to sustain the doctrine that a right of action for a tort to personal property was not assignable. In the first two cases, the question arose before the Code, and the inquiry seems to have been whether the right of action in such a case was assignable so as to enable the assignee to bring an action in his own name for the damages. This may have been the rule then, but the right to sue in the name of the assignee has been much extended since-. In the latter case, (McKee v. Judd,) it was held that a claim for the unlawful conversion of personal property was assignable so as to enable the plaintiff to sue in his own name. Gardner, J. says, upon the authority of The People v. Tioga Common Pleas, (19 Wend. 73,) the law may be considered as settled, that a claim, to damage arising from
It is also objected to the plaintiff's recovery, that the words used in' this' assignment do not transfer a claim for damages for a prior conversion. The assignment in this case, was of the stock subject to the payment of the amount due, and was followed by the tender of the debt and demand of the property. Under the rule laid down in Hall v. Robinson, (supra,) this would be sufficient to charge the defendants with a new conversion, even if there had been a previous conversion of the property. 'In Sherman v. Elder, (supra,) Allen, J., says : “An assignment of the property by name, after the conversion, carries the right of action for the conversion 6 ut res magis valeat quam pereat.’ Courts will give effect to a transaction if possible, and so construe an instrument as to give effect to the intent of the parties.” In Hicks v. Cleveland, (39 Barb. 573,) a contrary rule was held, but the point 'of the decision, in that case, was that the plaintiff,
It is also objected to the plaintiff’s recovery, that there can be no recovery in this action, because no equitable right of action is shown in the plaintiff. The theory of the complaint is that the plaintiff, as the assignee of the stock from the debtor, had tendered to the defendants the amount of the debt due, and demanded the pledge, and that he brought this action to redeem the pledge, and for an account of the dividends received on the pledge. This would be sufficient to give a court of equity jurisdiction, and if the court obtained jurisdiction, a judgment might afterwards be rendered for the damages sustained by the plaintiff, if the defendants had converted the pledge. It is in proof, however, that the conversion had taken place previously, by an illegal sale of the stock, and the plaintiff therefore fails in obtaining the relief sought for in equity, and the defendants contend that the complaint should therefore be dismissed.
In a court of equity it has rarely, and then only under peculiar circumstances, been thought proper to entertain any jurisdiction in actions of tort. (Yacy v. Downer, 5 Litt. 9.) ISTor would equity entertain jurisdiction where an adequate remedy can be had by ordinary legal proceedings, nor for the purpose merely of obtaining a compensation in damages. (Bradley v. Bosley, 1 Barb. Ch. 125. Morss v. Elmendorf, 11 Paige, 277.) Under these decisions it would have been difficult to" sustain the jurisdiction of a court of equity, prior to the adoption of the present system. But under the change which has been made in the union of legal and equitable proceedings, and the decisions of the Court of Appeals since that period, a' more extended jurisdiction in equity has been sanctioned.
In Phillips v. Gorham, (17 N. Y. Rep. 270,) the court held that legal and equitable relief might be united and sought in the same complaint; but in that case the objection to the right of trial by a jury did not exist, as the case was tried by a jury. The judge says : “All cases may legally be tried by a jury, so that this creates no insuperable difficulty.” In Emery v. Pease, (20 N. Y. Rep. 62,) the action was for a balance due on an account stated, and, upon the trial, the judge dismissed the complaint on the ground that no accounting was shown, and held that the plaintiff should have brought his action for the accounting.. That judgment was reversed, the court holding that, although no accounting had been proved, the facts averred in the complaint showed that the plaintiff was entitled to an account, and that such judgment should have been rendered, although the plaintiff had mistaken his remedy in the complaint. In regard to this case, also, it is proper to add, that the case was tried at the circuit,
In the New York Ice Co. v. The Northwestern Ins. Co. (23 N. Y. Rep. 357,) an action was brought to reform a policy of insurance, and for the recovery of the amount of the insurance. The case was tried before the judge as an equity case, and the equitable relief was denied. The judge then held that the questions arising on the policy of insurance,-which involved a question of fraud, should be tried by ■ a jury, and the complaint was dismissed, Judge Comstock, in delivering the opinion of the court, says: “ The plaintiff should not have been turned out of court on the mere ground that he had not entitled himself to the equitable relief demanded, if there was enough left of his case to entitle him to recover the sum in which he was insured.” In this case, however, that can hardly be called a controlling decision, as the appeal was dismissed because the order was -not appeal-able.
In Barlow v. Scott, (24 N. Y. Rep. 40,) the complaint asked for specific performance or for. damages. The equitable relief was denied, and judgment for damages rendered. This case resembles the present one in the fact that the plaintiff is not entitled to the equitable relief asked for,- and his only remedy, if any, is for damages. In the last cited case, Lott, J. says: “ It is, however, insisted by the' defendant that it was erroneous for the court to order judgment in favor of the plaintiff on a trial of the issue without a jury. There is nothing to show that the action was so tried against or without the defendant’s consent. The objection does not appear to have been made at the trial, and, if it was, should have been stated in the case, and not appearing there, it can not be urged in this court as a ground for reversing the judgment.” No intimation is given as to what would be propér if the objection had been taken at the trial. And in The N. Y. and N. H. R. R. Co. v. Schuyler et al. in the Court of Appeals, December, 1865, it was held that whatever the facts
These are all the cases in our courts that I have been able to find in which the question now under consideration has been reviewed. They leave the particular question, which arises in this case, undecided, and the decision in the last case, of Barlow v. Scott, although it does not express any direct opinion, does intimate that if the objection had been taken on the trial, that the case was one proper to he tried by a jury, it would have been worthy of consideration.
I have always doubted as to the power of the court to take from a jury the consideration and decision of actions to recover damages, because the plaintiff has seen fit to set up in his complaint, in addition thereto, a claim for equitable relief in which he fails. If such a rule is sanctioned, it is only necessary for a plaintiff to connect with the claim for damages, which the parties have a right to ask should he tried by a jury, a fictitious claim in equity, and thereby secure to the party his own choice as to a mode of trial, although different from that which is provided by the constitution. In this case, the plaintiff has united with his claim for damages a cause of action for the redemption of a pledge, although he knew at the time the pledge had long prior thereto been sold, and an account rendered to the pledgee. He had,.therefore, in reality no equitable cause of action; and if I now reserved the right to try the case and award damages for the improper sale of the pledge, it would deprive the defendants of the right which they have to submit their acts in this matter to a jury instead of a single judge. The objection is taken by them now on the trial, and the case is brought within the views, as expressed by the court in Barlow v. Scott, (supra.)
I am somewhat at a loss to decide what course is proper, under the circumstances, to be adopted in the disposition of
But even supposing that the claim in this case could be enforced as one of contract, there is no ground for assuming equitable jprisdiction in giving the plaintiff the remedy to which he may be entitled. Under the old system, a Court of-Chancery did not retain jurisdiction' merely for the sake of" assessing damages, and where no case was made out for equitable relief, the court would dismiss the bill, and turn the party over to his legal remedies, (Strickland v. Strickland, 6 Beavan, 77; Fisher v. Carroll, 1 Jones, N. C. 27;) and. where the defendant had disabled himself, before the filing of the bill, and the plaintiff knew that fact "before he commenced his suit, it is thus reduced to the case of a bill filed for the sole purpose of assessing damages for a breach of contract, which is- a matter strictly of legal and not equitable jurisdiction, (Denton v. Stewart, 1 Cox, 258,) • and it was doubtful whether the court had "jurisdiction to assess damages merely,-in a case where the plaintiff was aware, before he filed his bill, that, the contract (or' duty) could not be specifically performed!, (4 John. Ch. 559,) and as was said by the Chancellor: “When" the remedy is clear and perfect at law by an action, if the court is to sustain such a bill, I
In this case, as I have before stated, there is no ground for the equitable relief asked for in the complaint. The pledge had been sold long before the assignment; such sale was known to the assignor. The same fact was known to the assignee before suit, even supposing he did not know it before he was told of it through his agent, who demanded the stock on tender of the money. It is very clear, therefore, he had-no good ground on which to commence an action for the redemption of the pledge. Nothing remained but an action for the tort in improperly disposing of the pledge, for which an ample remedy existed at law. The better course, therefore, will be to order the trial of the cause by a jury. For this purpose I have examined more fully the questions as to the sale of the pledge, because if it were clear the plaintiff could not recover, the complaint -might be- dismissed. As, however, I have come to a contrary conclusion, and as the statute of limitations would be a bar to a new action, there is no propriety in dismissing the complaint. This is in consonance with Greason v. Keteltas, (17 N. Y. Rep. 491.) Selden, J. in that case, was of opinion that there was no ground of equity jurisdiction, and that any decision of the court denying a right to trial by jury would be plainly erroneous. The jurisdiction in that cáse was only .sustained upon the ground that the party waived his objection to that mode of trial.
This disposition of the case will render it unnecessary for me to, examine as to the proper rule of damages or the
My conclusion is that the plaintiff has not made out any case entitling him to equitable relief, and that the cause must be ordered to the circuit for trial as to the claim for damages for the illegal disposition of the stock in question.
Ingraham, Justice.]