107 Mo. App. 401 | Mo. Ct. App. | 1904
This is an action which was brought by plaintiff against the defendant to recover damages for the wrongful conversion by the latter of twenty-five shares of stock in the Gordon Foundry and Machine Company — a domestic business corporation— of the par value of one hundred dollars each. The answer was a general denial.
There was a trial by the court without the aid of a jury where the facts which the evidence tended to prove, were that the Gordon Foundry and Machine Company, which we shall hereafter refer to as the machine company, issued in a single certificate forty-five shares of its capital stock to C. C. Hyatt, but of which stock the plaintiff was the owner, it having been issued to said Hyatt for convenience. The plaintiff by its vice president, Schneider, sold to the defendant twenty shares of stock so owned by it and held in the name of Hyatt. An effort was made by Schneider to have the machine company take up and cancel the forty-five-share certificate and issue in its stead two certificates, one for twenty and the other for twenty-five shares, but because of a vacancy in the office of the "secretary of the company in this he was unsuccessful. Confronted with this condition Schneider caused Hyatt to assign the forty-five-’
As soon as Cave returned, defendant procured a return by him of the stock to plaintiff.. Atwell, the secretary of the machine company, had resigned and his office was vacant until the election of new directors, when Cave was elected to succeed him in that office. As soon as Cave was elected he cancelled the forty-five-share certificate and issued in its place two certificates to himself, one for twenty shares and the other for
It appears that during the thirteen days which Cave had possession of the forty-five-share certificate the defendant had no possession of or dominion over it.It is true, defendant was under obligation to return the certificate to the bank, but it does not appear that he made any attempt to escape the performance of this obligation. The plaintiff had caused Plyatt to assign the certificate to Cave and therefore it well knew that the title to it was not in defendant. It knew, too, that the title to the twenty shares purchased by defendant was not only in Cave, but that he, and not defendant, was the owner of them. The twenty-five shares of new stock issued and assigned by Cave to plaintiff was finally retained by it.
The question which we think to be decisive of the case is, whether or not, under the facts which are substantially as we have stated them to be, the plaintiff has made out a prima facie case of wrongful conversion entitling it to a submission? If this question is answered in the affirmative the demurrer to the evidence was properly denied; and if in the negative, its denial was error.
A conversion may be proved in either of three ways: (1), by tortious taking; (2), by any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner; (3), by a refusal to give up possession to the owner on demand. . . . The idea of property is of the essence of a conversion. Nanson v. Jacob, 93 Mo. 331, 340.
“A conversion in a legal sense consists either in the appropriation of the thing to the party’s own use and
There are authorities to the éff ect that to sustain an action of this kind there must be title in the plaintiff and an actual conversion by defendant, and if either of these ingredients is wanting the action will not lie. Duggit v. Davis, 53 Mich. 35; Bowlin v. Nye, 10 Cush. 416; 1 Addison on Torts, secs. 471, 472; Woodside v. Adas, 11 Vroom (N. J. L.) 47; Frome v. Dennis, ante; Salt Springs v. Wheeler, 48 N. Y. 492; Maguire v. Dinsmore, 70 N. Y. 410. And there are others holding that the failure to deliver stock on demand is not evidence of conversion, unless the defendant either had possession of it or had it so in his control that he could comply with the demand. Knapp v. Winchester, 11 Vt. 351; Yale v. Saunders, 16 Vt. 243; Frome v. Dennis, ante; Hawkins v. Hoffman, 6 Hill 588. And these authorities further hold that a failure to deliver goods on demand is not evidence of conversion where defendant does not refuse to deliver but can not do so. Accordingly, it is clear that there was no evidence adduced justifying a submission.
We may add that there was a consistent’recognition by defendant of plaintiff’s right to the twenty-five
In this view of the case it becomes wholly unnecessary to notice the other questions raised by the appeal.
The judgment is for the wrong party and must be reversed.