101 Neb. 691 | Neb. | 1917
In the early part of 1910 the defendant sold to William Volk for $15,000 gold coupon bonds of $10,000 face value and preferred stock of $5,000 face value in the Norfolk Long Distance Telephone Company of Norfolk, Nebraska. Volk left this stock with Parmele for safe-keeping, and took Mr. Parmele’s receipt reciting that fact, in which it is also agreed that the stock should remain in the Bank of Commerce, of Louisville, Nebraska, in which the defendant was interested, for the term of five years, “and the income to be- paid over to William Volk as paid.” After Mr. Volk’s death this plaintiff began this action against the defendant to recover the value of- the stock, alleging that Mr. Volk in his lifetime, “being engaged to be married to plaintiff, gave said bonds and stock to plaintiff, and at the time delivered the same to plaintiff by delivering to her said written instrument of the defendant.” She appears to have had the defendant’s receipt for the stock in her possession. The defendant alleged that he had no notice of such gift by William Volk to the plaintiff, and that Mr. Volk had in his lifetime deposited the stock with this defendant as collateral security for such loans of money as the defendant and the banks in which the defendant was interested might make to Mr. Volk, and that he and the banks had pursuant to that agreement loaned to Mr. Volk money at different times amounting in the aggregate to a large sum, and that all of the property of the Norfolk Company (of
It is not claimed that the defendant by this transaction with Volk became the owner of the bonds and stock. If the money advanced thereon, to Yolk was repaid the defendant had no right in the surplus value of the bonds and stock. It appears to have been held upon the former appeal in this case (Kaufmann v. Parmele, 99 Neb. 622) that the evidence was not disputed that the plaintiff was the owner of the bonds and stock, subject to such interest as the defendant might have in the same as collateral security. At the foreclosure sale all of the property of the Norfolk Long Distance Telephone Company was purchased in the name of this plaintiff for $20,000, and as that was two-thirds of the appraised value the same was confirmed by the coyirt. The defendant insists that that fixed the value of the property and therefore the amount that could be applied upon the bonds, and established that the stock was worthless as the property wms'insufficient to pay the bonds which was the first lien upon all the property of the company.
The amended petition of the plaintiff sues as for a conversion, and much of the discussion in the briefs is upon the question whether this sale regularly made in the interest of all parties could amount to a conversion on the part of the defendant. We cannot see that this discussion is important. It appears that the defendant immediately transferred all of the property of the company to the Nebraska Telephone Company and received $50,-000 for it. This money was paid to the Norfolk Long Distance Telephone Company and was distributed to the
The only question remaining is as to the amount then owing to the defendant and the banks he was interested in for which these bonds were collateral. The total amount of the bonds outstanding was $79,000. The proportion of the $50,000 that should have been applied up
Reversed.
The following opinion on motion for rehearing was filed December 22,1917. Rehearing denied.
It is stated in the brief upon the motion for rehearing that “some outstanding bills” and a note to the bank were deducted from the $50,000 which was received for the property of the Norfolk Company, thereby reducing the amount actually received. Our opinion, in which it was said that the amount that should have been applied upon these bonds would be $6,329.10, is modified; and, in addition to the question heretofore submitted to the trial court, that court will also determine whether there were deductions made from the $50,000 purchase price, and so. ascertain the net amount received by the Norfolk Company, and compute the
Overruled.