48 Cal. 99 | Cal. | 1874
Lead Opinion
In the view we take of this case, it will be unnecessary to consider many of the points which have been elaborately discussed by counsel. There is no conflict in the evidence to the effect that when the stock certificates in controversy were delivered to Sime & Co., as collateral security for the indebtedness of Tilden & Breed, they were properly en
If King had desired to preserve his alleged rights, and to prevent an abuse by Tilden & Breed of the secret trust on which it is claimed they, held the stocks, he should have
If Sime & Co. have unlawfully sold and converted the stocks without a previous demand and notice, it was the rights of Tilden & Breed, the pledgors, and not those of King, wliich were injuriously affected. The contract of pledge was between Sime & Co. and Tilden & Breed; and the right of action for violation of the contract or a breach of duty by the pledgee, was in the pledgors and not in a stranger to the transaction.
It is a sufficient answer to any action by King founded on his supposed rights, if any he has outside of the contract of pledge between Sime & Co. and Tilden & Breed, that the stocks were held under a pledge which was valid as against him, and to which he was a stranger, and that the debt, for which they were pledged has not been paid or tendered.
Among the numerous rulings of the Court below, which ■ the plaintiff claims to have been erroneous, we discover no error which could injuriously affect the plaintiff in the view we have taken of the case.
Judgment and order affirmed.
Rehearing
A rehearing is asked on the ground that by the uncontradicted testimony of Bewcomb, when -Sime & Co. received the stocks, and particularly those pledged to Livingstone, Sime had express notice that they. belonged to King. The jury found otherwise; and it is insisted that the verdict on this point is not only wholly unsupported by any evidence in the cause, but is directly con
The petition for a rehearing is denied.
Mr. Justice McKinstry did not express an opinion on the application for a rehearing.
Mr. Chief Justice Wallace, being disqualified, did not participate in the decision of this case.