Jarvis v. Manhattan Beach Co. — 25 N.Y. St. Rep. 1

Majority

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Nathaniel Jarvis, Jr., v. The Manhattan Beach Company.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Stock—Right of becoveby fbom company fob false information as TO GENUINENESS OF CERTIFICATE.

A firm of stock brokers being given a certificate of stock of the defendant corporation for sale, inquired at the office of the defendant before selling it, and was there informed that the stock was properly endorsed for transfer, and upon inquiry at the trust company, the place of registry for such stock, such firm was also there informed that the stock was properly registered. In fact, it was not a genuine stock certificate, and the person whose name appeared therein as owner, was a fictitious person. There was a rule of the stock exchange known to the defendant, requiring the seller of stock to guarantee to the purchaser the correctness of the certificate, and also of the transfer. Held, that the brokers could recover from the defendant corporation, the amount which they have been obliged to pay by reason of their guarantee of said stock certificate.

Motion by plaintiff for a new trial on his exceptions ordered to be heard in the first instance at the general term.

W. D. Guthrie and Victor Morawetz, for pl’ff; W. J. Kelly, for def’t.

The plaintiff sues as assignee of a firm of stockholders, Edward 0. Fox & Co. This action is for damages sustained under these circumstances. Fox & Co., were requested by one Fullerton to sell one hundred shares of the defendant’s stock, standing in the name of B. Bignell. Fullerton was, at the time, the defendant’s clerk. He handed Fox & Co. a certificate for the one hundred shares which appeared to be entirely genuine, but which in fact was not. It had appended to it the genuine signatures of the defendant’s president and assistant treasurer, and, at the defendant’s request, it had been regularly countersigned and registered by the Central Trust Company.

B. Bignell, however, was a fictitious person, and when the defendant’s. officers negligently signed the certificate in question, all the authorized capital stock of the company had been issued and was in circulation. The fraud was Fullerton’s. He had receipted for this certificate in Bignell’s name on the books of the company. He had also signed the name “ B. Bignell” to the transfer on the back

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of the certificate, and then witnessed the signature in his own name. That was the condition of things when Fullerton asked Fox & Co. to sell the certificate. There is a rule of the stock exchange known to the defendant which, as between members, requires that the seller of stock shall guarantee to the purchaser the correctness of the certificate, and also of the transfer. Fox & Co. sold the stock and, in compliance with the rule, gave the necessary guarantee. Before doing so, however, they made inquiry at the Central Trust Company and were there informed that the stock was properly registered. They then made inquiry at the defendant’s general office, which was also its general transfer office in this city, and were there informed that the stock was properly endorsed for transfer, and that the person in charge was then willing to make the transfer. Upon this, Fox & Co. acted. The stock, with their guarantee, was sold and delivered, and the purchase price, less commission, was paid over to Fullerton. This was in September, 1882, and nothing more was heard of the matter until March, 1884, when Fullerton absconded, and this and other frauds of his were discovered. Thereupon the defendants notified the stock exchange of the invalidity of several certificates—this among the number—and that they would not be accepted as genuine stock of the company. Fox & Co. were thereupon required to make good their guarantee* which they did, receiving the certificate back from their vendee and subsequently demanding a transfer from the defendants, which was refused. The defendants having entirely repudiated’this spurious stock, the present action was brought.

Upon this state of facts, we think the learned judge erred in taking the case from the jury and dismissing the complaint. It is conceded that the case is to be treated as though Fox & Co. had purchased the stock from Fullerton. The principle is the same whether they purchased or guaranteed. In either case they are out of pocket the price of the stock. The payment under the guarantee was Compulsory, and they were 'then subrogated to the worthless security.

It also seems to be conceded that if Fox & Co. had originally availed themselves of the transfer clerk’s offer and had had the stock transferred into their names on the books of the company, the latter would have been estopped. Such, at all events, was the decision of the circuit court (Wallace, J.) in Manhattan Beach Co. v. Harned ( 27 Fed. Rep., 484 ). There, the purchase had been made without any previous inquiry of the company, yet the court held that it was estopped by issuing a new certificate. By that act “they not only reaffirmed the authenticity of the surrendered certificate, but recognized the defendants’ title to the shares, and thereby authorized the defendants to repose without further inquiry upon the validity of the title they

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had acquired.” And the court further held that the company was estopped by its subsequent negligence in not discovering the fraud and notifying the defendants in time to enable them to seek restitution from the swindler.

Here, the brokers made the fullest inquiry before the purchase, and the company recognized the title of the holder of the Hank assignment, and authorized Fox & Co. to “ repose without further inquiry ” upon the validity of such title. The learned judge, in the Harned Case, intimated that the invalid certificate was not the proximate cause of the injury, for the reason that the purchaser had relied solely upon the fraudulent transfer. It should not be overlooked, however, that Bignell has no being, and is a fictitious person. This is averred in the answer, and was not questioned upon the trial. Now the certificate was an affirmation that Bignell was a real person; and the true owner of the shares (Holbrook v. New Jersey Zinc Co., 57 N. Y., 616 ), with capacity to transfer them upon the books of the company. This affirmation of ownership and capacity to transfer was as false as the affirmation that the certificate represented a part of the capital stock of the company.

The purchaser in the Harned Case necessarily relied upon this affirmation of ownership and capacity to transfer as well as upon the affirmation of the genuineness of the stock, for Gray, in whose name the stock there stood was also a fictitious person.

These facts the defendants placed it in the power of Fullerton to utilize. It is difficult to perceive, therefore, why the representation made by the issue of such a certificate was not the proximate cause of the injury. The purchaser paid his money in reliance upon the company’s affirmation that the individual upon whose signature the transfer depended was a real person. As he was fictitious there could have been no genuine endorsement, and the purchaser lost nothing by the Shaw endorsement. He paid his money upon the false representation, made by the certificate, that title could be acquired by a genuine assignment, when in truth a genuine assignment was impossible. The legal effect of such a certificate was substantially the same as if it had been issued to “ bearer.” Such is the rule with regard to bills put in circulation with a ficititious payee (Coggill v. American Exchange Bank, 1 Comst., 113), and the analogy is not strained when we consider, as was said by the learned judge in the Harned Case, that “shares of corporate stock are dealt with in the market like negotiable paper or chattels; and the certificates issued as evidence of the ownership of the shares áre the indicia of title and are treated as representing the shares themselves.”

It is not necessary, however, to decide definitely whether the plaintiff could recover upon the representation made

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by the certificate standing alone. For this case differs from, the Harned Case, in the crucial fact that Fox & Co. did not rely upon the certificate alone but sought, as we have already seen, to make assurances “doubly sure”—to quote the testimony—by inquiry of the defendant.

In considering the effect of this inquiry, it must be remembered that the company had caused its stock to be listed on the stock exchange, and that it was aware of the requirement of a guarantee (in transactions between members of that body) not only of the genuineness of the certificate but of the endorsement. It knew, too, that members of the board relied upon the company for information and invariably gave the guarantee upon the faith thereof.

The company kept a record of its stockholders’ signatures, and it was its duty to verify such signatures when applied to for a transfer. It had also repeatedly assumed the duty of knowing and vouching for such signatures, when applied to for information as to the genuineness of a. transfer. Indeed, such was the custom of Wall street, and. the defendant was well aware that business was being-transacted, and transfers made, upon the faith of the double inquiry—first, as to the genuineness of the certificate; and second, as to the genuineness of the transfer indorsed, thereon.

In the light of these surrounding circumstances, Fox & Co. presented the certificate at the defendant’s general office, and were informed, as already stated, that it was properly indorsed for transfer, and that the person in charge was willing to transfer it. This-proximate cause of Fox & Co.’s inquiry was plainly this interpretation, coupled with the affirmation of the certificate. This was a reaffirmation of the validity of the certificate, of the reality of B. Bignell, and of the genuineness of the signature of that fictitious person to the transfer indorsed. It was made with full knowledge of the purpose of the inquiry (namely, that the stock might be safely purchased), and with the means directly at hand—in the books lying before the agent—of discovering the fraud, and saving the innocent inquirer from loss. This is a plain case of estoppel, entitling the plaintiff to genuine stock, if that were possible; but that being impossible, entitling him, upon the defendant’s repudiation of the certificate, to appropriate damages.

The authority of the person who made the representation is questioned. But the evidence on that head was certainly sufficient to go to the jury. Leslie v. Knickerbocker Life Ins. Co., 63 N. Y., 34 ; and see Dunn v. Star Fire Ins. Co., 19 Week. Dig., 531. Indeed, there was testimony from which the presence of the defendant’s treasurer, Mr. Moulton, might have been inferred; and that it was he who answered the inquiry. Fullerton was the transfer clerk, and he acted under Mr. Moulton’s “supervision and inspection.”

The defendant’s present secretary, Mr. McDonough, testified that at the time when the inquiry was made, “there was no other employee of The Manhattan Beach Company-

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in the office with Mr. Fullerton, except the treasurer, Mr. Moulton.” But even if it were not Mr. Moulton, the testimony was ample, that it was at least an authorized person. Fox & Co.’s clerk testified that this person was in charge of the office and was in the regular employ of the defendants. When Fullerton was out, this person was in his place, and he had personally transferred stock for Fox & Co., and had had transactions with their clerk in regard to the transfer of certificates. This evidence being sufficient to go to the jury, the questions which the plaintiff asked to submit should, under the principle of the Schuyler Case ( 34 N. Y., 30 ), have been submitted; and, if answered in the affirmative would have warranted a verdict for the amount received by Fox & Co. from the original purchaser and paid over to Fullerton.

The exceptions should, therefore, be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.

Van Brunt, Ch. J., and Daniels, concur.