286 Mass. 126 | Mass. | 1934
This is a bill in equity by which the plaintiff seeks to restrain the defendant Winer from transferring sixty-two shares of stock, issued by the defendant corporation to the plaintiff and pledged by him to the defendant Winer, and prays that the latter be ordered to pay the plaintiff the value of the stock less such sum as may be due Winer on a promissory note held by him, and given to him by the plaintiff.
The defendants contended that it was agreed that eighty
On motion for the confirmation of the master’s report, the trial judge reversed the findings of the master as to the
It is plain upon the facts found that there was no conversion of the stock by the defendant Winer. It was found that he had possession of the stock as pledgee, and, although the plaintiff was discharged as an employee of the corporation, he was at that time the president of the corporation; that at that time Winer had possession of the stock as collateral security for the note, and that no corporate action was taken upon the discharge of the plaintiff. The findings that the defendant Winer acted on the assumption that after the plaintiff had been discharged his interest'in the corporation had terminated, and that Winer considered himself the owner of the stock of the plaintiff, exercised complete control of it and treated the plaintiff as no longer connected with the corporation, and the other findings fail to show that the stock has been converted by Winer. Whatever he may have thought concerning his rights in the stock, he did nothing to indicate that he had converted it to his own use or affected the rights of the plaintiff therein. Winer still holds the stock as pledgee. It still belongs to the plaintiff, subject to the claim of Winer as security for the balance due on the note. The master finds that the plaintiff has made no tender or offer to pay the note. If he had no right to the immediate possession of the stock he cannot maintain an action for its conversion. One who has a right of property in chattels, but who has no right to the immediate possession thereof, cannot maintain an action for conversion. Raymond Syndicate v. Guttentag, 177 Mass. 562, and cases cited. Crehan v.
Before the plaintiff can maintain any proceeding to recover possession of the stock it is his duty to ascertain the amount due on the note. It does not appear that he has ever made any attempt to determine such amount. It is found that no declaration of profits or dividends has ever been taken by either of the parties. Although art. 10 of the by-laws provides for the submission to arbitration in accordance with St. 1925, c. 294, neither party has complied with this article, or signified a desire to do so.
It is plain from the entire findings of the master and the reasonable inferences to be drawn therefrom that the findings as to the amount due on the note, and that the plaintiff was excused from making a tender or payment by reason of the defendant’s refusal to account were erroneous. These findings were properly reversed by the interlocutory decree entered on the master’s report; in other respects the master’s report was rightly confirmed. The final decree which recites that there is due the defendant Winer on the note to September 20, 1933, including interest, the sum of, $4,955.29; that the defendant Winer holds the stock of the plaintiff as collateral security for the amount due on the note; that the other prayers are denied; that the bill be dismissed with costs taxed at $20.60, and that execution issue therefor fails to show any error. It is to be affirmed with costs of the appeal.
Ordered accordingly.