132 Mo. 238 | Mo. | 1896
This action was instituted by appellant as public administrator of the city of St. Louis, having in charge the estate of Jeptha H. Simpson, deceased, to recover upon a promissory note payable to the order of Jeptha H. Simpson and signed by the defendant. Petition in the usual form.
The answer, after admitting the execution of the note in suit, avers that the defendant delivered to said
Plaintiff filed his reply denying the new matter set up as defense and counterclaim and asks judgment in accordance with the prayer of his petition.
Upon the issues as thus made up without further objection, the case was tried by the court without the intervention of a jury, resulting in a finding for plaintiff on his note for $3,708 and a finding for defendant on her counterclaim for the sum of $6,925 and an entry of judgment therein in favor of defendant for the sum of $3,217, and ordering same classified against Simpson’s estate, to reverse which plaintiff has prosecuted this appeal.
At the close of the testimony plaintiff asked three declarations of law embracing his views of the case, all
The following are the declarations of law asked by plaintiff, that were refused by the court, and for which this appeal was prosecuted.
“1. The court declares the law to be, that although it may find from the evidence that the defendant pledged with the plaintiff’s intestate the Heilman notes and deed of trust securing the same, and the said Totten notes and deed of trust securing the same, shown
“2. The court declares the law to be, that although it may believe from the evidence that the defendant pledged with plaintiff’s intestate the notes shown in evidence made by the defendant and Totten to secure the payment of defendant’s note upon which this suit is brought, and although the court may further believe from the evidence that the said plaintiff’s intestate rehypothecated said collateral to secure the payment of his own personal obligation in a sum greater than the amount which the defendant owed to him, the said pledgee, yet, if the court further believe from the evidence that before the filing of the answer of the defendant in this ease, she did not pay or tender payment of the note upon which suit is brought and request or demand the redelivery of said collateral securities so pledged to plaintiff’s intestate, as aforesaid, then the verdict must be for the plaintiff for the amount of said note, together with interest thereon from the date thereof. * * *
It will thus be seen that plaintiff’s contention is, that if there is no restriction in the contract of pledge prohibiting the pledgee from repledging securities delivered to him, after the maturity of the principal debt, he could not be held accountable for his intestate’s action in that behalf; at least in a suit by the pledgee against the maker on the original debt, when the damages claimed by defendant are sought to be recouped or set off against the amount ascertained on that debt.A proposition not true in a general sense as expressed in the declaration asked, and equally as untenable as applying to the facts of the case in hand.
Nonpayment of the original debt at the stipulated time does not work a forfeiture of the pledge either by the civil or at the common law. No title to or ownership in the collateral by forfeiture inures to the benefit of the pledgee by the maturity of the debt or by the lapse of time. The statute giving to a pawnbroker the right of absolute disposition of and ownership in, the pledge left with him as security for his debt ‘ ‘ after the failure to pay the interest on the principal debt, or the debt itself, for sixty days after maturity thereof,” does not apply.
Title and ownership of the pledge, when the subject of it consists of ordinary goods and chattels, remain in the pledgor; the pledgee taking only a lien on it, as a security for his debt, and is bound to keep and use it in a manner so as not to impair or destroy
the courts of our country, however, hold to the rule that where great inconvenience and loss are threatened by reason of the long delay in the maturity of the collateral, the court on proper showing may order the collateral sold and its proceeds immediately applied to the payment of the original indebtedness, but no court has ever gone to the extreme of holding that the pledgee himself may dispose of this character of collateral without express authority from the pledgee — that the right of disposition by sale of the notes held as collateral is not one incident to the delivery and hypothecation of same.
Although there is some conflict in the courts of our country on the last proposition, we think the great
In this case, however, the collateral notes were disposed of by a rehypothecation of them by the pledgee to secure a five thousand dollars loan to himself, without authority from, notice to, or an accounting with the defendant, the original pledgor of the collateral, thus making this conversion complete, and defendant’s right of action consummate.
There is nothing in plaintiff’s contention, as made by his second refused instruction, that he is entitled to recover in full on his note in suit, unless the defendant, before the filing of her answer, paid or tendered payment of the principal note and requested or demanded the redelivery of the collateral. The obligations and duties of the pledgee and pledgor are mutual and reciprocal. While the pledgor must be ready and willing and offer to pay the original indebtedness before demanding a return of the collateral, the pledgee also when he demands payment on the original indebtedness must be ready and willing to return and redeliver to the pledgor the collateral left with him as security.
Defendant is not seeking to avoid judgment on the ground that a tender has been made of the original indebtedness; she concedes its correctness, and moved upon .plaintiff for a counter judgment on a cause of action accruing to her arising out of the giving of the principal note sued on as the foundation of plaintiff’s claim.
By the admitted wrongful act of plaintiff’s intestate the plaintiff was incapacitated to perform the pledgee’s part of the contract, that is, to return to the pledgor the collateral notes if tender of payment of the principal note was made. Why, then, was a general demand necessary on part of the pledgor; or why require the form of a tender which the pledgor had a right to make upon the condition that “when she should perform her part of the contract by paying to plaintiff the note signed by her, she would be entitled to exact of him a return of the collateral’ ’ when both plaintiff and defendant knew it would be an idle and meaningless ceremony,
The further point is made by appellant that if defendant is entitled to recover on her counterclaim that her damages should be limited to the difference between the amount of her indebtedness on the principal note, and the amount that plaintiff’s intestate received from his subpledgee upon the repledging of the collateral which we think is also without merit.
While defendant might be able to recover, by proper proceeding, the collateral notes from plaintiff’s intestate’s pledgee on payment of the amount, these collateral notes were hypothecated to secure, and thus would be damaged by only the difference between the amount they were originally hypothecated to recover, and the amount secured by the second hypothecation, the law does not confine him to the hazard of such proceeding. In many cases the security hypothecated might not be found, or the parties holding same might not discover its whereabouts, and an action against the subpledgee be unavailing on account of insolvency and for numerous other reasons defendant’s collateral might be entirely lost to her, and in consideration of which the law holds the pledgee liable, as for a full conversion and appropriation of the collateral as soon as disposed of, and the pledgor’s damages is the difference between the amount due on the principal debt and the value of the collateral at the time of the conversion as declared by the trial court in its finding. Having two remedies for an injury the defendant may pursue either, and having pursued the one charging plaintiff as for a full conversion her damages have been properly ascertained. No error was committed by the trial court in refusing defendant’s instructions asked.