Kortright v. Buffalo Commercial Bank

20 Wend. 91 | N.Y. Sup. Ct. | 1838

By the Court, Nelson, C. J.

The whole defence in this case may be said to rest upon a denial of the title of the plaintiff to the certificate of stock, together with an objection to the form of thé remedy, and the measure of damages submitted by the judge to the jury.

It is contended, that the assignment on the back of the certificate of stock, from Barker to the plaintiff, and the power of attorney to Sherwood, were made without proper authority, and therefore, the demand upon the bank to enter the transfer on the books, was nugatory. The case presents a complete answer to this view. It appears that Barker endorsed his name, and affixed his seal on the back of the scrip, which was duly witnessed by Scrantum,the cashier, before it was enclosed to Bartow to obtain the $10,000. This blank was afterwards filled up by the plaintiff, by writing over the signature the transfer directly to himself and the power of attorney to Sherwood •, all which, is in strict conformity with the universal usage of dealers in the negotiation and transfer of stocks, according to the proof in the case. Even without the aid of this usage, there could be no great difficulty in upholding the assignment: the execution in blank, must have been for the express purpose of enabling the holder, whoever he might be, to fill it up. If intended to have been filled up in the name of the first transferree, there would have been no necessity for its execution in blank ; Barker might have completed the instrument. The usage, however, is well established, and was fully understood by Barker, as he made the transfer in conformity to it; and he, or those setting up a claim under him, should not now be permitted to deny its validity. The filling up, is but the execution of an authority clearly conveyed to the holder, is lawful in itself, and convenient to all parties, as it avoids the necessity of needlessly multiplying transfers upon the books.

It is contended, that the action should have been case instead of assumpsit. The former remedy no doubt would have been appropriate, perhaps the most appropriate, but the latter appears to be warranted by sufficient authority. The King v. Bank of England, Doug. 523. Parbury and another v. the same. Ibid. 526, n. 3 Mass. R. 381. 10 Ibid. 402. 17 Ibid. 503. 8 Pick. 98. 7 Crunch, 299. 2 Kent’s Comm. 289,291. Angel Ames on Corp. 129. In the case of The King v. The Bank of England, the court refused a mandamus, to compel the bank to enter a transfer of stock on its books, on the ground, that an action would lie for a complete satisfaction, equivalent to specific relief; and afterwards assumpsit was brought, and the cause tried before Lord Mansfield, without any exception to the remedy. The above references will show, that that case has been very generally regarded as an authority in this country ; and that the action may be maintained against a corporation aggregate, for a default of the kind in question, upon the ground that all duties imposed on them by law, raise an implied promise of performance. It was not very material how the question.was at first decided ; whether the remedy should be case or assumpsit, or either; and being once settled, there can of course be no good reason for disturbing it.

The plaintiff is entitled to recover the full value of the stock. This is obvious by the view of Lord Mansfield, in the case of The King v. The Bank of England, as he there observes, that an action will lie for complete satisfaction, equivalent to the specific remedy by mandamus, which was there sought j and for this reason he denied the application. The counsel for the defendants contend, that the plaintiff should recover only the damages actually sustained, and which they insist to be no more than the excess of price in the market, over the par value which might have been realized upon a sale and transfer | this assumes the plaintiff to be still the owner of the stock. But the defendants have denied this ownership altogether, and all right and title to control it, or the profits arising from the same. They possess the means of preventing its use or enjoyment, and if the plaintiff should now recover only the loss occasioned by his inability to sell in the market, the remedy would obviously be incomplete. He might stillbe nominally in possession of the stock, but the enjoyment of it denied to him, unless we are to assume, in the abse.nce of any change of intention on the part of the bank, that a second application for a transfer will be more successful than the first. Upon this limited measure of damages, the plaintiff might be kept in continual litigation at the volition of the defendants, or be driven to abandon his property.

Hew trial denied.