Denny v. Manhattan Co.

Headnote

Where an agent neglects to perform a duty which he owes to his principal and third persons are thereby injured, their remedy is against the principal and not against the agent.

Accordingly, where the plaintiffs were the assignees of a certificate of stock standing in the name of another person in a foreign banking corporation which had a transfer office in this state under the charge of an agent authorized to register transfers, who unjustly refused to permit the plaintiff’s stock which was registered in that office to be transferred to them on its books, upon which they brought case against the agent; held that the action could not be maintained.

Demurrer to" declaration. The: plaintiffs,' as trustees of the creditors of Joseph and Andrew Brown, appointed pursuant to proceedings' by attachment instituted against them as nonresident debtors on the 9th day of November, 1836 under- the provisions of "the' revised statutes, sued the- defendants in case for an alleged violation "of duty as the agents in New-York" of the Planters’ Bank of Tennessee, in' refusing' to • permit a transfer to the plaintiffs on the transfer book of the Planters’ Bank kept by them, of two - hundred and eighty-one shares of the capital stock of that bank alleged to belong to the plaintiffs -in their character of trustees. The declaration alleged that the defendants were-a banking corporation organized under their charter and transacting business in the city of New York, and that the Planters’ Bank was a corporation" created by the legislature of Tennessee with a capital off $2,000,000, divided into shares "of $100 each. It then averred that the defendants at the several times 'afterwards mentioned, “ were the agents in the said city of New-York "of the said Planters’ Bank of Tennessee for the registration arid transfer of the stock of such bank and the payment of dividends thereupon in said city, and did during all the time last aforesaid keep at their said banking house in the city of New York, a set of books for the registration and transfer "of the said stock of the said Planters’ Bank of Tennessee,” to wit, &c. It then stated with particularity the title of the trustees to the shares claimed by them, which was substantially as follows: the Browns, prior to the attachment against them, were the owners of the stock, and held two certificates, éach for separate portion^ of it, issued by the defendants as the lawfully authorized agents of the Planters’ Bank, signed by the cashier and by a clerk of the defendants under the corporate seal of the Planters’ Bank, which certificates stated that the Browns were entitled to the shares mentioned in the certificates- respectively, which were declared to be “transferable only at the bank'of the said defendants on the surrender of the certificate.” On the 12th day of December, 1837, A. Brown as survivor , of J. Brown who had died, executed under his seal a conveyance' and transfer of the stock mentioned in both cer

tificates to Messrs. Crockett and. Park, with a power of attorney contained in it .to a clerk of the defendants, who was named, to. surrender the certificates and execute, a formal transfer, Crockett and Park, a few days afterwards, executed a like conveyance of the stock to the. plaintiffs, as trustees as aforesaid, with a power of attorney in blank. The declaration thereupon. avers that it became and was the duty of the defendants upon the production and surrender of the certificates, “ to suffer, and permit ” the stock to be regularly transferred upon the transfer books kept at the defendants’ bank to, the .plaintiffs as truste.es under the .act; and that the plaintiffs, to. wit, on.the 29.thof ■ September, 1838, &c. exhibited to the defendants these evidences of their right to the stock, and also a letter from the cashier of the Planters’ Bank to the cashier of the defendants’ company requesting that such .transfer might be made, and offered to fill up the blank in the last mentioned conveyance with the name, of a clerk of the defendants", and to do all necessary acts, &c, and requested the defendants to permit the transfer .to be made; yet that the defendants, not regarding their duty, &c. but contriving and fraudulently intending, &c. Would hot suffer or permit the stock to "be transferred to the plaintiffs on the books so kept, by them, &c. whereby the plaintiffs have been unable to. obtain a sufficient title to the stock and have been prevented from, selling and disposing of it, whereby it has become of no Value, to the plaintiffs.

The foregoing is.the substance of the first count. There were four.other count? substantially like the. first, but with some additional averments not material to the point determined by the court.

The defendants demurred to the declaration, assigning special causes, objecting among other, things that, the declaration did not-show any valid title,in the, plaintiffs.as trustees to the stock in question, and that the defendants were not liable to the plaintiffs for acts done o.r omitted by them as agents of the Planters’ Bank; and that if they were liable at all the action ought to have, been assumpsit. Joinder.