The essential allegation is actual conversion by Charles A. Stoneham Company rather than the allegation of a conspiracy to convert by these defendants. Conversion by the Stoneham firm has been proved by the testimony of defendant Robertson and corroborated by plaintiff's Exhibit 79. This document was properly admitted in evidence. It conforms so closely with Robertson's description of the recapitulation sheet that the jury was warranted by the evidence in inferring that the two papers were identical. There is, therefore, proof that the agreement between Stoneham Company and Clarke Company to which plaintiff consented, contemplated actual physical delivery of plaintiff's securities by Stoneham Company to Clarke Company and that, without plaintiff's knowledge and without direction from any apparent agent, Stoneham withheld such delivery, sold plaintiff's shares of stock and his subscription rights in such stock and applied the proceeds to the reduction of the debt owed by Clarke Company to Stoneham Company. The judgment should be affirmed, with costs.
CARDOZO, Ch. J., CRANE, O'BRIEN and HUBBS, JJ., concur; POUND, LEHMAN and KELLOGG, JJ., dissent on the ground of error in the admission of Exhibit 79.
Judgment affirmed. *Page 190