Kugel v. Riedell

9 N.J. Misc. 360 | N.J. | 1931

Pee Cueiam.

This is the defendant’s appeal from a judgment rendered against him in the Circuit Court of Essex county and it is contended that there should have been a nonsuit in the trial court and that erroneous instructions were given to the jury.

The motion for nonsuit was rested on the ground that the ease as proved by the plaintiff presented a different cause of action from that averred in the complaint and that there was not sufficient evidence of a contract between the parties.

The complaint alleged an agreement that the stock, which seems to have been increasing in value, should, in consideration of the continuance of a loan, be held by the defendant until a time agreeable to both parties, when it should be sold and the proceeds divided equally between them; that the defendant, disregarding the agreement and without adequate consideration, transferred the stock to his wife who subsequently sold it at a greatly advanced price.

There was ample proof of the facts set forth in the complaint and from them we think there can be no doubt that the transfer was a tortious invasion of the plaintiff’s rights. The stock belonged to him. The defendant held’ it as security only, with an added agreement that with the plaintiffs acquiescence he might sell it. This was the limit of his powers. When, instead of retaining it according to the trust imposed, he transferred it to his wife without plaintiffs consent it was not only a violation of the agreement, but an unlawful conversion of the plaintiffs property, and the learned trial judge was right in so holding. The motion for nonsuit was therefore properly denied.

The criticisms of the charge to the jury, with a single exception, are predicated on the correctness of the defendant’s contentions on the motion for nonsuit. As we disagree with these contentions, we conclude that the grounds of appeal respecting these portions of the charge are not well founded.

It is also said that the court incorrectly instructed the jury as to the date of conversion and as to the price per share which the jury might award to the plaintiff. The first is of no material consequence, and as to the damages (assuming the charge to have been adequately excepted to, which is doubtful), the rule laid down was in accord with the decision of the Court of Errors and Appeals in the case of Dimock v. National Bank, 55 N. J. L. 296.

It appears, however, from the record and from the proofs that the verdict includes an incorrect and excessive amount of interest to the extent of $1,224, and this the respondent concedes may be corrected by this court. The judgment which was for $17,212.50 will therefore be reduced to $15,-988.50, and for this amount it is affirmed.