158 Mo. App. 551 | Mo. Ct. App. | 1911
This is an action in the nature of trover as for conversion. Plaintiff recovered a verdict of $5000, and defendant prosecutes the appeal.
In so far as important to state it, the petition avers that plaintiff was, on January 28, 1908, in possession of two certificates of stock of the Renfrow Briquette Machine Company, of the par value of $15,000, which he held as collateral security to a certain indebtedness evidenced by notes given to him in consideration of a loan of money; that, on the 29th of January, 1908, defendant (who was the owner of the stock, subject to the pledge) represented to plaintiff that if plaintiff would surrender the shares to him, defendant would sell the same for cash and pay plaintiff- $5000 of the proceeds thereof on the indebtedness, and that if he did not succeed in so doing within thirty days, he would return the certificates of stock to plaintiff to be held as theretofore. Plaintiff says that, induced
It is argued the petition is insufficient for the reason it does not expressly aver that plaintiff either had possession or the right of possession of the shares of stock mentioned at the time of the conversion. There was no demurrer interposed to the petition, and the objection was made ore tenus to the introduction of evidence thereunder, which is tantamount only to a challenge of its sufficiency after verdict. Though it be true that plaintiff must have the right of possession as well as a right of property in the goods converted at the time of the conversion and that the petition should so show on its face, no one can doubt the sufficiency of the pleading after verdict in respect of the right of possession at that time, if such is necessarily implied or may be reasonably inferred from other pertinent allegations therein. [Munchow v. Munchow, 96 Mo. App. 553, 70 S. W. 386.] Any wrongful exercise of dominion by one person over the goods and chat-: tels of another which is inconsistent with and exclufi sive of the owner’s rights therein amounts to- a con-: version thereof. If one wrongfully deals with the j property of another by disposing of it to a third per-1. son without right, as if it were his own, he is guilty of j conversion. [2 Cooley on Torts (3 Ed.), 859, et seq.; Withers v. Lafayette County Bank, 67 Mo. App. 115, 119; Miller v. Lange, 84 Mo. App. 219.] It appears from the averment of the petition that defendant was entrusted by plaintiff with the certificates of stock for a particular purpose and that he transferred them to another and converted the proceeds thereof to his own
It is argued the court should have directed a verdict for defendant for the reason there is no direct proof of an agreement on the part of defendant to return the certificates of stock to plaintiff within thirty days after receiving them in the event he failed to negotiate a sale and pay plaintiff five thousand dollars on the indebtedness for which the certificate of the stock was held as collateral. We are not impressed with this argument, however, for the reason that, though the petition averred an express agreement on the part of defendant to return the stock in the event he was unable to sell it and realize as much as five thousand dollars to pay on the indebtedness, the matter is unimportant if an actual conversion otherwise appears. The proof is quite conclusive that plaintiff held the stock as collateral security to loans amounting to something-over $10,000 which he had made to the Illinois Coalette Fuel & Mining Company, a corporation, of which defendant was secretary and one Har-ford was president. Defendant and Harford first borrowed $3500 from plaintiff on their individual note for the purpose of promoting and financing the Illinois Coalette Fuel & Mining Company and pledged the stock involved here as collateral security for that loan. Soon thereafter the corporation mentioned was organized and the individual note of defendant and Har-ford surrendered and that of the corporation, executed by Harford as president and defendant as secretary, was given to plaintiff instead for the same amount. On this note is indorsed an agreement to the effect that the same collateral, or the shares of stock involved here, should he held by plaintiff as security therefor. Afterward, plaintiff made other loans to the Illinois corporation at the instance of defendant and Harford, in all amounting to something near $10,000, under an agreement, according to the evidence of both
The instructions for plaintiff are criticized, but they are obviously sufficient and the argument against them does not merit discussion in the opinion.
As before stated, the shares of stock were first pledged by defendant to plaintiff as collateral security for a loan of $3500 which was made to defendant and Harford for the purpose of promoting and financing the Illinois Coalette Fuel '& Mining' Company. As soon as this company was organized, plaintiff sur-1
“The court instructs the jury that the evidence shows that the one hundred and fifty shares of stock of the Renfrew Briquette Machine Company belonging to defendant, Misner, at the time it was originally pledged to plaintiff was so originally pledged to secure a note of Misner and Harford for thirty-five hundred dollars, and unless the jury find and believe from the evidence that thereafter a new agreement was entered into by the plaintiff, Wilkinson, and defendant, Misner, by the terms of which it was agreed that said shares of stock should be held as collateral security for the payment of one or all of the notes of the Illinois Coalette Fuel & Mining Company to plaintiff, Wilkinson, or that defendant consented that plaintiff should hold such shares as such security, then plaintiff, Wilkinson, was not entitled to retain possession of said shares of stock, and your finding must be for the defendant.”
It is argued by defendant that the court erred in so modifying the instruction as to permit the jury to find the stock was pledged by defendant for the indebtedness of the Illinois Coalette Fuel & Mining Company upon merely finding “that defendant consented that plaintiff should hold such stock as such security. ’ ’ The argument assumes that nothing less than an express agreement to that effect will constitute a pledge. There can be no doubt that in order to constitute a / pledge of personal property there must be a contract whereby the property is held as security. [22 Am. and Éng. Ency. Law (2 Ed.), 851; Jones on Pledges (2 Ed.), sec. 5.]. But it is not essential that such a contract shall always be an express one, for it may be implied or -inferred from the facts and circum-j stances of the case, if it appears the minds of the*