108 F.2d 155 | 2d Cir. | 1939
The plaintiff, Overbury, appeals from a judgment, entered upon a directed verdict, in an action for breach of contract and for the conversion of 1574 shares of common stock of the “Flintkote Company”,
Overbury’s equity in the pledge, whether or not there was a surplus, would certainly have been subject to attachment, had Farley been acting on his own behalf. Warner v. Fourth National Bank, 115 N.Y. 251, 22 N.E. 172; Clements v. Doblin, 209 App.Div. 208, 204 N.Y.S. 413, affirmed 239 N.Y. 526,147 N.E. 180. Since we are assuming that he was merely their dummy, the defendants must maintain that they had as good a right to attach as he. We hold that they had. It was indeed once held in Massachusetts that a pledgee could not sue upon the secured debt without surrendering the pledge (Cleverly v. Brackett, 8 Mass. 150), but any such doctrine has long since been repudiated. Cornwall v. Gould, 4 Pick., Mass., 444; Beckwith v. Sibley, 11 Pick., Mass., 482; Whitwell v. Brigham, 19 Pick., Mass., 117; Taylor v. Cheever, 6 Gray, Mass., 146. And in Wright v. Guilmette, 94 Vt. 372, 111 A. 459, and Ottumwa National Bank v. Totten, 114 Mo.App. 97, 89 S.W. 65, the pledgee was allowed, not only to sue, but to attach the “equity” in the pledge itself. If so, he is á fortiori free to attach for another debt, for the only objection ever raised has been that, by taking the pledge, he has impliedly agreed to look only to it for payment. It is true that a pledgee owes a duty to care for the pledge and to restore it after redemption, and that of course includes any “equity”; but attaching it for another debt is not inconsistent with that duty. Plainly the pledgee may attach any other property of the pledgor, and the “equity” is in fact just that. We conclude therefore that if the Farley attachment would have been a valid lien in Farley’s hands on March 19, 1936, it was not the less so, because Farley was acting for the defendants.
Since Overbury was concededly a non-resident, the validity of the attachment depended upon two points: Farley’s power to sue in his own name, notwithstanding his relation with the defendants, and the sufficiency of the papers. It is
The last question is whether this lien excused the defendants’ refusal. As we understand Overbury’s argument, it is that, since the attachment was the act of the defendants, they cannot avail themselves of it to excuse performance of their own promise, which was both to deliver the Aluminum shares, and to surrender the Flintkote shares, upon tender of the price. That however is merely another way of saying that no pledgee may attach the pledge because the attachment will prevent performance of his promise to return it. It is of course true that, with certain exceptions not here important, an obligor takes the risk of whatever will prevent his performance, but that does not include prevention by the obligee himself. If for example the buyer in a contract of sale transfers his interest in the goods, the seller is excused from delivery to him. So too, if the buyer’s creditors seize his interest in invitum. And if the seller to whom the buyer owes a separate debt is. to have the power to attach, the consequent prevention of delivery must be attributed not to him but to the buyer, who by failing to pay gives the seller power to seize thé goods by an independent title, quite as much as though the buyer had himself transferred it. That is this case, and we need, discuss none of the authorities cited by the plaintiff except Rodgers v. Larrimore & Perkins, 188 Ky. 468, 222 S.W. 512. There the defendant had agreed to sell tobacco to the plaintiffs, and before delivery, the prospective interest of one of the buyers had been attached. The seller used this as an excuse for disposing of the tobacco elsewhere at a higher price, although the attaching creditor had informed him that he might deliver to the buyers. The court said that the attachment did not end the contract, as it probably did not; but it did not say that it would not have excused delivery to the buyer if the attaching creditor had not consented; and clearly it would. For this reason it does not help Overbury here.
Judgment affirmed.