227 F. 526 | 8th Cir. | 1915
Lead Opinion
(after stating the facts as above).
The first proposition is not seriously doubted, but the second is earnestly denied. We think they are equally sound. The argument on the point is, that assumpsit is not maintainable unless there he, in fact, privity of contract between the parties; and it is said that that relation did not exist between the St. Eouis bank and the Bowling Green Trust Company.
“The action of assumpsit for money had and received, it is said by Lord Mansfleld, Burr. 1012, Moses v.' Macfarlen, will lie in general whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by the ties of natural justice and equity to refund. And by Buller, Justice, in Stratton v. Rastall, 2 T. R. 370, ‘that this action has been oí late years extended on the principle of its being considered like a bill in equity. And, therefore, in order to recover money in this form of action the parly must show that he has equity and conscience on his side, and could recover in a court of equity.’ These are the general grounds of the action as given from high authority.”
In Gaines v. Miller, 111 U. S. 395, 397, 4 Sup. Ct 426, 427 (28 L. Ed. 466):
“Whenever one person has in his hands money equitably belonging to another, that olhe.r person may recover it by assumpsit for money had and received.”
The contention is old and was early repudiated as demonstrated by the note to Maudeville v. Riddle, in Appendix to 1 Cranch, 367, under sulxl. 4, page 438. For collation of additional authorities see 1 Chitty on Pleadings (16th Am. Ed.) star pages 112, 362 and 363, notes. In Cary v. Curtis, supra, 3 How. 254, 11 E. Ed. 576:
“It is an entire mistake of the true meaning of the rule of the common law, which is sometimes suggested in argument, that the action of assumpsit for money had and received is founded upon a voluntary, express, or implied promise, of the defendant, or that it requires privity between the parties ex contractu to support it.”
The rule is aptly stated by Bigelow, Judge, in Brewer v. Dyer, 7 Cush. (Mass.) 337, 340:
“The law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is*532 founded.” Leete v. Pacific M. & M. Co. (C. C.) 88 Fed. 957; Bank v. Bank (C. C.) 19 Fed. 301.
The action lies for money which “ex Eequo'et bono, the defendant ought to refund.” Stockett v. Watkins, 2 Gill & J. (Md.) 326, 20 Am. Dec. 438; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782; Stimpson v. Insurance Co., 47 Me. 385; Horne v. Mandelbaum, 13 Ill. App. 607.
The bill had a wide scope. True, its tíltimate purpose was to have the appellant' declared a trustee for the benefit of the complainant oft the moneys which it sought to recover. But in many and lengthy paragraphs it sets forth the transactions in which appellant was involved and which it sought to carry out under the contract between Nicholson and Perry of date January 17, 1907; the relations of appellant thenceforth to the cement company and its control of the board of directors of that company and its subsidiary companies which owned the plants in Kansas and Texas, its extensions of credits to the cement company, and its direction of the affairs and business, in general, of that company; fraudulent conduct, as appellee alleges on information and belief, on the part of appellant in relation- to, and in conducting the business of, the cement company and its subsidiaries, as well as toward the Bowling Green Trust Company in connection with taking down the 10,000 shares collateral and substituting others, and the fiduciary relations theretofore existing between appellant and the trust company, and attaches interrogatories for the purpose of requiring a disclosure and accounting in relation to the charges made. “Thus (on the face of the bill) there were in the case, as ingredients to support the jurisdiction of equity discovery, account, fraud, misrepresentation and concealment” (Tyler v. Savage, 143 U. S. 79, 95, 12 Sup. Ct. 340, 36 L. Ed. 82), and the fiduciary and trust relations. A court of equity takes cognizance of controversies involving a trust relation, whether it be a resulting' one growing out of the relations of the parties and their acts toward each other, or a
After the exchange of collateral, the trust company taking 14,000 preferred shares in lieu of the 10,000 common, five semi-annual dividends of three and a half per cent, each were declared and paid on the preferred stock. The first three of these dividends were declared while the trust company held the 14,000 shares in pledge, but when the last two were declared the trust company held only 11.000 of said shares, it having surrendered to the St. Eouis bank 3.000 of said shares oh July 25, 1910, at the request of the bank. None of these dividends, as such, were1 paid over by the bank to the trust company. They were as follows: three and a half per cent, on 14,000 (face value $350,000), payable July 2, 1909, $12,250, three and a half per cent, payable January 1, 1910, $12,250, and three and a half per cent, payable July 1, 1910, $12,250, three and half per cent. on. the 11,000 (face value-$275,000), payable January 1, 1911, $9,625, and three and a half-per cent, payable July 1, 1911, $9,625— a total in dividends on the preferred while held by the trust company of $56,000. It is fairly inferable from the proof that all of these dividends were paid into and taken over by the bank and applied by it in the same manner that it used the dividends on the common stock; and while the bill does not make specific claim to them, its general prayer is sufficient for that purpose. The appellee was therefore entitled to recover the dividends declared on the preferred stock . while it held it in pledge as collateral security, with six per cent, added thereto from the dates on which they were severally payable.
“The difference ordinarily recognized between a mortgage and a pledge is, that title is transferred by the former, and possession by the latter. Indeed, possession may be considered as of the very essence of a pledge (* * *); and*535 if possession be once given up, the pledge, as such, is extinguished.” Bidstrup v. Thompson (C. C.) 45 Fed. 452, 454; Thurber v. Oliver (C. C.) 26 Fed. 224; Insurance Co. v. Iron Co. (C. C.) 81 Fed. 439, 445; Pauly v. Loan & Trust Co., 58 Fed. 666, 7 C. C. A. 422; Phelps v. Church, etc., 115 Fed. 882, 53 C. C. A. 407, s. c. 99 Fed. 683, 40 C. C. A. 72.
The trust company was not the owner of the 10,000 common shares and had no interest or special property right in them as pledgee after it delivered them back to the pledgor, and appellee cannot therefore successfully claim that at the time the bank sold the shares and received the proceeds it was disposing of property which belonged to the former. Indeed, we do not understand that any such claim is asserted, but the contention in that respect is that recovery may be had because the shares were obtained from the pledgee through deception and fraud practiced by the pledgor and the bank. That is to say, the tort is not waived but expressly relied upon. An action cannot be ex contractu for one purpose and ex delicto for another. The tort must not only be waived in order to maintain assumpsit; but when waived it is no longer an element in the case, not even in defense, for the defendant could not set it up. Gibson v. Stevens, 3 McLean, 551, Fed. Cas. No. 5401, and citations to the point. And when waived plaintiff’s case rests upon ownership or right of property, which must be established. 2 Greenleaf, Ev. (15th Ed.) § 120; Janes v. Buzzard, Hempst. 240, Fed. Cas. No. 7,206a.
. But conceding a right and duty to here consider the alleged fraud in taking down tlie common shares and substituting the preferred, and conceding that such fraud was established, and then giving to it the force and effect which it would be entitled to receive hi an action ex delicto, still there would be no ground for. recovery, because no damage is shown in that transaction. We cannot assume that the common shares (ex dividends) were more valuable than the preferred at the time of tlie exchange.
As the amount awarded to the complainant by the decree below exceeded what it was entitled to recover there must be a reversal, with costs to appellant and a remand of the cause with direction to enter a decree for complainant for an amount to be ascertained as pointed out in the opinion of this court.
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Rehearing
On Petition for Rehearing.
The motion for rehearing complains of our opinion and conclusions as to two matters, viz.; First, the dividend of $125,000 declared on the ten thousand shares of common stock on the 23rd day of December, 1908, and, second, the five dividends ($56,000) declared on the preferred shares, both of which we held appellee was entitled to receive.
1. As to the first. — The claim is that appellant was entitled to retain the $125,000 dividend on the common stock by reason of the fact that on December 12, 1908, eleven days before that dividend was declared, Perry appeared at the office of the trust company in New York and made the arrangement by which it was agreed that there should be an exchange of collateral; and therefore it is insisted
We also undertook to point out that the right of the pledgee as such in the pledge continues until a surrender of the pledge, and thus we felt there was a secure basis on which the right of appellee to that dividend was rested. We are still of that mind and are not' impressed with the relevancy of authorities cited in the brief to the motion, which deal with the relations between vendor and vendee.
2. As to the second. — It is true that arguments and briefs did not direct specific attention to the right of appellee to recover the five dividends declared on the preferred shares while it held them in pledge; and if we now had any impression that appellant seriously denied that these five dividends, or any of them, came into its hands, and stood ready to establish the denial by proof, we would be compelled to say that it is entitled to an opportunity to establish that fact. But we gain no such impression from the motion, brief and argument. Indeed, the position in that respect is evasive. We quote from page 21 of the argument:
“If these preferred dividends were not paid to and appropriated by appellant, it is not the intention of this Honorable Court to require the appellant to account therefor to appellee. * * * We believe that upon an accounting for this purpose appellant can make clear that it did not receive and appropriate these dividends, certainly not all of them, and but few, if any.”
The element of appropriation, as here used, upon which the contention rests, is immaterial. The evident purpose is to inject, as an element of liability, the inquiry whether appellant applied to its own use all of these dividends; whereas it was and is our view that liability, under the authorities cited, turns on the question: Did appellant receive these dividends with knowledge of the rights of the pledgee? At the time all of these dividends were declared, and for a long time theretofore, appellant, through a board of directors selected at its dictation and consisting of its officers and employés (except a small minority), had control of and managed the cement companies, had extended them large credits, had further extended its credit to Nicholson, had these preferred shares as collateral, with other of his’ stocks, on his indebtedness to it, and -had on its book an account, under the requirements of the contract of January, 1907, entitled “George E. Nicholson Trustee Account,” into which the dividends on the common shares were required to be put, with
The motion is therefore overruled.