Neiler & Warren v. Kelley, 69 Pa. 403

Neiler & Warren v. Kelley

69 Pa. 403 | Pa. | 1871

The opinion of the court was delivered, October 23d 1871, by

Sharswood, J.

This was an action of trover to recover damages for the conversion of certain railroad stocks and bonds alleged to have been held by the defendants below, as a pledge or collateral security for the payment of a debt or debts owing by the plaintiff to them.

*407The first assignment of error is, that the court below erred in overruling the demurrer to the declaration. This declaration was undoubtedly, as to part of it, defective in substance, and had that part of it alone been demurred to, it must either have been amended, or judgment entered for the defendants for so much of the plaintiff’s demand. It alleged the conversion of “ 70 shares of the Sun-bury and Erie Railway Company of the par value of $100 each; 43 and j^-¶ shares of the Alton, Terre Haute and St. Louis Railroad Company of the par value of $100 each.” It was decided by this court in Sewall v. The Lancaster Bank, 17 S. & R. 285, that trover does not lie to recover damages for shares of bank stock, and the same principle, of course, applies to all other corporation stocks. Mr. Justice Huston said: “ Though trover might lie for a certificate of stock as it does for a bond or a deed, yet it will not lie for 100 shares of bank stock any more than it would for a debt or a right of entry.” A share of stock is an incorporeal intangible thing. It is a right to a certain proportion of the capital stock of a corporation — never realized except upon the dissolution and winding up of the corporation — with the right to receive, in the mean time, such profits as may be made and declared in the shape of dividends. Trover can no more be maintained for a share of the capital stock of a corporation than it can for the interest of a partner in a commercial firm. The two cases are precisely analogous. But the document or writing which is the evidence of ownership is a tangible corporeal thing— the subject not only of property but of possession — the right to which is essential in trover. Thus a bond or promissory note may be the subject of the action but not the debt of which it is the evidence. The other things mentioned in the declaration do not fall within this objection. “ Four bonds made by the Philadelphia and Erie Railroad Company, of $1000 each; four bonds made by the Philadelphia and Erie Railroad Co., guarantied by the Pennsylvania Central Railroad Company, of $1000 each.” One of the causes of demurrer assigned was, that neither the shares of stock nor the bonds were described with sufficient certainty — their numbers, dates, in whose names issued, and other particulars, are not given. It is true that in all actions for taking away or injuring personal property, the goods ought to be set forth with some degree of certainty — stating the kind, number and value — all of which are here given, but it is settled that less certainty is required in trover than in detinue and replevin, because in trover damages only are recovered, but in detinue and replevin the things themselves: 1 Chitty on PL 363. We think, therefore, that the description was sufficiently certain.

Had there been several counts in this declaration, one for the shares of stock and another for the bonds, it would have been the duty of the court — upon a demurrer to the former count — to have *408entered judgment for the defendants, if no amendment had been moved. A demurrer is either to the whole or part of a declaration, and if there be several counts, some good and others bad, if the defendant demurs to the whole declaration the court must give judgment for the plaintiff, and this rule applies equally to one count, part of which is sufficient and the residue not, when the matters are divisible in their nature. Thus, if a plaintiff declares for taking his money and also for certain goods, without showing that the goods were his property, the count will be good as to the money, and if the defendant demurs generally to the whole, the plaintiff will have judgment: 1 Chitty on Pl. 643. The court below, therefore, committed no error in overruling the demurrer.

The 2d, 3d, 4th, 5th and 6th assignments of error are clearly not secundum regulam, Rule VII., 6 Harris 578 ; Burkholder v. Stahl, 8 P. F. Smith 371; and are therefore to be holden for none. We may say in regard to the fifth and sixth assignments, that, as no copy of the letter of Kelley, dated January 17th 1863, to which a reference is made in the charge, is printed in either of the paper-books, and which seems to be very material, no opinion could safely be hazarded upon the question attempted to be raised by these specifications.

The 7th assignment of error, however, is substantially in compliance with the rule. It complains of the charge of the learned judge in regard to the measure of damages, as applicable to the evidence in the case, “ that it was the highest price the securities bore between their sale and the bringing of this suit.” In this we think there was error.

The general rule as to the measure of damages in an action of trover, undoubtedly is well settled to be the value of the goods at the time of the conversion, to which may be added interest up to the time of the trial, unless there were some circumstances of outrage in the case, when the jury may give more: Jacoby v. Laussatt, 6 S. & R. 300; Dennis v. Barber, Id. 420; Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts 333; Harger v. McMains, 4 Watts 418. This rule may be considered to have been, to some extent, modified as to stocks, railroad bonds and other securities of a similar nature, by the cases of The Bank of Montgomery v. Reese, 2 Casey 143; Reitenbaugh v. Ludwick, 7 Id. 131; Persch v. Quiggle, 7 P. F. Smith 247, and perhaps others. The rule, however, is not changed but only modified to this extent, that wherever there is a duty or obligation devolved upon a defendant to deliver such stocks or securities at a particular time, and that duty or obligation has not been fulfilled, then the plaintiff is entitled to recover the highest price in the market between that time and the time of the trial. The grounds of this exception are that such securities are limited in quantity — are not *409always to be obtained at any price, and are of a very fluctuating value. These are supposed to constitute suflicient reasons for the distinction. But it is plain that it has no application to the evidence in this case. The defendants below were at no time under any obligation to deliver these stocks and bonds specifically to the plaintiff. He never had put himself in a position to demand them before the bringing the suit or up to the time of trial, by tendering or offering to pay the amount of his indebtedness to the defendants. Had the action been detinue or replevin, he must have failed entirely. We agree that in trover, where there has been actual conversion by a wrongful sale of the pledge, there is no necessity for a tender of the debt, but its amount may be recouped by the jury from the damages — the value at the time of conversion — but where a plaintiff seeks to fasten a responsibility for more than the usual measure of damages, he must also fasten upon the defendants the duty or obligation to deliver specifically the stock or securities at some particular time, and their refusal to fulfil that duty. Non eonstat that upon a demand and tender the defendants would not have been able to deliver to the plaintiff similar stocks and securities, as according to Gilpin v. Howell, 5 Barr 41, they might well do. There was no pretence in this ease of any outrage which should be allowed to inflame the damages. The defendants acted in the sale of the stocks and bonds, in the belief that they had a right to sell them, and with perfect fairness and good faith to all interested. There was nothing, therefore,! in the evidence in the case to take it out of the ordinary rule that! the measure of damages was the market value of the stocks and | securities at the time of the sale or conversion — with interest up| the time of the trial — from which the jury should deduct the amount of the plaintiff’s indebtedness to the defendants, and such ought to have been the instruction to the jury.

Judgment reversed, and venire facias de novo awarded.