174 F. 627 | 2d Cir. | 1909
(after stating the facts as above). The basis of the claimant’s demand is the conversion of his stock. The only-evidence tending to establish a conversion is the entries in the stock record book showing that upon one particular day there was a difference of only five shares between the receipts and deliveries of Distillers stock. From this testimony the claimant seeks to draw the inference that on that day the brokers must have disposed of, and consequently have converted, his stock.
But the testimony does not warrant the drawing of this inference. There is nothing to show that, if the claimant had demanded his stock on the day in question, he would not have received it. The entries do not show necessarily that the brokers did not have under their control sufficient shares to make delivery. They may, in regular course of business, have parted with the possession of as many shares as they received, and yet have retained subject to their absolute control in the possession of another sufficient stock to meet the claimant’s demand. If they did this, there was no conversion. Lawrence v. Maxwell, 53 N. Y. 19; Horton v. Morgan, 19 N. Y. 170, 75 Am. Dec. 311; Douglas v. Carpenter, 17 App. Div. 329, 45 N. Y. Supp. 219; Am. & Eng. Encyc. of Law (2d Ed.) § 1057; Jones on Pledges (2d Ed.) § 507.
Upon the testimony regarding the book entries the claimant failed to establish his claim before the referee. Pie contends, howevei-, that the allegations of his proof of claim constituted prima facie evidence
It is undoubtedly true that a sworn proof of claim has probative force. It is prima facie evidence of its allegations even when objected to. In the recent case of Whitney v. Dresser, 200 U. S. 532, 535, 26 Sup. Ct. 316, 317, 50 L. Ed. 584, Mr. Justice Holmes, said:
"The words of the statute suggest, 1£ they do not distinctly import, that the objector is to go forward, and thus that the formal proof is evidence even when put in issue. The words are: ‘Objections to claims shall he beard and determined as soon,’ etc. Section 57f [Act July 1, 1898, c. 541, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443)]. It is the objection, not the claim, which is pointed out for hearing and determination. This indicates that tbe claim is regarded as having a certain standing already established by the oath. * * * We believe that, the understanding of the profession, the words of the act and convenient and just administration all are on the side of treating a sworn proof of claim as some evidence even when it is denied.”
There would, therefore, be much force in the claimant’s contention, if he had taken the same position before the referee. He might properly have stood upon his proof of claim, and have insisted that the objectors should go forward. But he did not do so. He offered to establish the allegations of his proof of claim by the entries in the stock record book, and contended that the inference to be drawn therefrom supported the charge of conversion. Having thus attempted to establish the allegations in his proof of claim, he cannot be permitted to use tliose very allegations to supply the deficiencies in his testimony. A proof of claim may have some probative force; but it certainly should not be regarded as self-proving, unless relied upon.
The decision of the District Court is affirmed, with costs.