4 Johns. Ch. 490 | New York Court of Chancery | 1820
As all the equity of the bill sustaining the injunction, is fully denied in the answer, the motion to dissolve the injunction ought to be granted.
The contract upon which this suit arises, was reduced to writing, and is contained in the receipt or acknowledgment given by the defendants, and accepted by the plaintiff. It precludes all misunderstanding and uncertainty, by the full and precise terms in which the agreement is declared. The defendants acknowledge, that they “ hold 430 shares of United States' bank stock, as collateral security for the payment of the note, &c., and that, on payment of the note and interest, they engage to re-transfer the said 430 shares to the plaintiff, or his order, accounting with him for the dividends that shall become payable on the same; and in case the note and interest were not duly paid, they were at liberty to make an immediate sale of the shares, accounting with him for any surplus, and holding themselves responsible for any deficiency.” As the defendants, at the time, carried on the business of stock and exchange brokers, and as the plaintiff dealt with them in that capacity, he should have caused the shares to have been identified, if he intended that they should have been kept distinct and separate from the mass of stock in which the defendants dealt. The shares in question were not defined and designated, so as to be distinguished from other bank shares in the same bank j and if the defendants had always, in their possession and names, and under their control, shares to that amount, during the whole time of credit given by the note, and were ready, able and willing, at all times, to account to the plaintiff for that number of shares, and the dividends arising thereon, whenever he entitled himself to such an account, it is all that he could ask under the contract. The answer is explicit on this point, and while it admits, that the shares in question constituted part of one indiscriminate mass, or fund of stock placed in their names, and subject to their control, and from which they, from time to time, made such transfers
jPothier, in one of his plain and familiar illustrations, supposes the case of a quantity of wheat deposited with another, and in a season of scarcity, the magistrate compels the bailee or creditor to bring that wheat to market, and sell it, he is then responsible for the price of it, which becomes a
Injunction dissolved.