Hyperlawhypertext legal database Mechanics' Banking Ass'n v. Mariposa Co. 26 N.Y. Super. Ct. 395

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Mechanics' Banking Ass'n v. Mariposa Co.

26 N.Y. Super. Ct. 395 3 Rob. 395 Court N.Y. Super. Ct. Decision date 1865-12-30 English

Decision Majority — McCunn, J. · Dissent — *403 Monell, J. (dissenting.)

Contents

Majority

p. 395
The Mechanics Banking Association, plaintiff and appellant, v s. The Mariposa Company, defendant and respondent.

Headnote

1. Where stock is, by the terms of the certificate thereof, “ transferable only in person or by attorney,” on the books of the cotnpany issuing it, upon the surrender of the certificate, the company is not obliged to allow a transfer to be made upon its books except upon the application of the owner, in person or by attorney.
2. Thus, where the defendant issued a certificate in the above form, to M. of 473 shares of its capital stock, and a transfer of the stock was demanded by the plaintiff, M. not attending in person or by attorney, but the plaintiff simply presented a power of attorney, signed by M., appointing F. his attorney to transfer to D. & C. 100 shares, and to J. 373 shares of the stock, and certificates from D. & C. and from J., stating that they had no interest in the shares, and that they consented that such shares “ be transferred to the person or persons entitled theretoS'eld that the defendant was justified in refusing to permit the transfer to be made to the plaintiff. Monell, J. dissented.
(Before Barbour, Monnell and McCunn, JJ.)
Heard November 13, 1865;
decided December 30, 1865.
This action was brought to recover damages for a refusal by the defendant to allow a transfer to the plaintiff, upon the defendant’s books, of 473 shares of the capital stock of the defendant, a mining corporation incorporated under the general act.
The stock stood in the name of John H. McDowell, as his property, and a certificate to that effect had been issued by the company to, and was held by him. The stock was transferable only in person or by attorney on the books of the company at their office, and only upon the surrender of the original certificate. In June, 1864, a transfer was demanded. McDowell did not attend in person, nor ask nor offer to transfer the stock. The plaintiff simply presented a power of attorney signed by McDowell, appointing J. H. Ferdon his attorney to transfer unto Dibblee & Cambios 100, and to P. & F. Jaudon 373 shares of the stock j and the person making the demand also presented a certificate of P. & F. Jaudon, that they had no interest in the shares, and that they consented “ that the said shares be transferred to the person or persons entitled
p. 396
thereto,” and' a similar certificate of Dibblee & Cambios. The company .refused to allow the transfer to the plaintiff.
The action was tried before Justice Moncrief and a jury. On the trial, the above state of facts appeared. After the plaintiffs rested, the defendant’s counsel moved to dismiss the complaint, upon the grounds, 1st. That the principal, or his attorney, did no’t demand the transfer. 2. That the plaintiffs showed no valid title to the stock. The motion was granted, and the plaintiff appealed.
John E. Burrill, for the plaintiff, (appellant.)
I. The issuing and delivery of the certificate in question by the company to McDowell was admitted, and no evidence was offered by the defendant to. disprove the fact established by the certificate, that McDowell was the ■ owner of, and entitled to, the shares in question.
II. The assignment and delivery to the plaintiff of the certificate, with the assignment and power attached thereto, executed by McDowell in blank, operated as an assignment and transfer of the shares to the plaintiff, and. according to the terms of the certificate, and the custom and usage, and well established principles, entitled the plaintiff to demand a transfer of the shares to themselves on the books of the company on the surrender of the certificate.
1. The custom and usage set up in.the complaint, and the knowledge of it on the part of the company, are not denied. (Com. Bank of Buffalo v. Kortright, 22 Wend. 348 . S. C., 20 id. 91.)
2. Eo evidence was introduced by the defendants to show ■ that they had any lien or claim on the stock, or that any equities existed, as between "themselves "and McDowell,- which could justify a refusal to permit McDowell to transfer the stock. *
3. The delivery of the certificate and assignment executed by McDowell vested the plaintiff with all the title of McDowell to the shares ; and in the absence of any equities existing in favor of the company, such title was perfect, and
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entitled' the plaintiff to demand a transfer. (Com. Bank of Buffalo v. Kortright, 20 Wend. 91 . S. C. 22 id. 348. Leavitt v. Fisher, 4 Duer, 1 . Fatman v. Loback, 1 id. 354.)
4. The cases which go farthest to restrict the negotiable character of stock certificates, concede that they are transferrable by indorsement and delivery ; and that, as between the transferor and transferee, the title of the latter is perfect; but that it is subject to all the rights of the corporation existing against the assignor. (Ang. & Ames on Corp. 7th ed. §§ 353, 354, 564, 565. New Haven Railroad cases, 13 New York Rep. 628, 629.)
5. Here, as has been said, the defendants did not assert any such rights or equities against McDowell or any one else.
III. Under the circumstances established, the plaintiff or the company were entitled to, and would have been justified in striking out the names of Dibblee & Cambios and P. & F. Jaudon from the assignments.
1. It was conceded that when the certificate and assignment were delivered by McDowell, the latter .was in blank.
2. It was conceded that the names of Dibblee & Cambios and P. & F. Jaudon were inserted for the purpose of making a transfer, which was not made.
3. There was no evidence to show that the certificate and assignment had ever been delivered to, or gone into the possession of Dibblee & Cambios, or that they had ever acquired any interest therein; but, on- the contrary, it is proved that they.disclaimed any interest therein.
4. All the interest of P. & F. Jaudon in the shares was transferred to the plaintiff,
5. The execution and delivery of the assignment by McDowell, in blank, authorised the holder to insert the name of any party to whom the shares might be sold. (Com. Bank v. Kortright, 20 Wend. 93 . S. C. 22 id. 364. Leavitt v. Fisher, 4 Duer, 20 .)
6. The certificate never was delivered to Dibblee & Cam-bios, and the insertion of their names, accidentally or erroneously, did not prevent the holder from striking out their names and inserting others.
p. 398
IY. Whether or not the plaintiffs were entitled to strike out the names of Dibblee & Cambios and P. & F. Jaudon from the assignment, they had the right to demand from the • company a transfer of the shares to those parties, in accordance • with the assignment, and the defendants were liable for having refused such demand. Such demand was made and refused, although, as the company were assured, Dibblee & Cambios and P. & F. Jaudon were present to receive the transfer and make a re-transfer to the plaintiffs.
Y. The demand made by the plaintiffs was in all respects sufficient, and made in such manner as to cover all contingencies. (C om. Bank v. Kortright, 22 Wend. 353 .)
YI. The defendants made no objection to the form or sufficiency of the certificate, assignment or transfer, or to the form of the demand; and by such omission, and the refusal to permit a transfer of those shares to be made by any person, or to any person, have precluded themselves from making any objection to the sufficiency of such demand, or of the papers on which it was based. (Peacock v. N. Y. Life Ins. Co., 1 Bosw. 338 . See particulary Hill’s Points, iv. in Bumstead v. Dividend Co., 2 Kern. 90; Allen’s opin. S. C. pp. 96, 97.)
YII. The transfer clerk of the defendant, who was the attorney named in the assignment to make the transfer, was . ready and willing, and was about to make the transfer, but was prevented by the vice president of the company.
YIII. The grounds upon which the motion for a nonsuit was asked are wholly untenable, and it is difficult to perceive their force or accuracy.
1. The two conditions mentioned were both complied with; moreover, the attorney was the transfer clerk and agent of the defendant, who was prevented by the defendant from doing the act required.
2. The plaintiff was the principal, for the purposes of demand.
3. If not, then Dibblee & Gambles and the Jaudons were, and a demand was made by all.
4. The defendants are precluded from objecting to the suf
p. 399
ficieney of the demand by the admissions in the pleadings. (Sixth point.)
5. The plaintiff’s title did not depend upon the two papers called consents, executed by Dibblee & Cambios and P. & F. Jaudon, and the language of which was so uniformly criticised, but upon -other independent facts. (See second point.)
IX. Under any circumstances it cannot well be said that the evidence was insufficient to go to the jury.
X. The exceptions taken at the trial to the exclusion of evidence are well taken.
1. The plaintiff was not restricted to what took place at the time of the demand of 20th June, but was entitled to show a demand at a different time, and what then occurred.
2. The time mentioned in the complaint was wholly immaterial, and the plaintiff was not restricted to that date.
3. We were entitled to show either a prior or subsequent demand, and what took place, for the purpose of showing what objections, if any, the defendants made on each occasion, and how we obviated them.
Wm. M. Evarts, for the defendant, (respondent.)
I. This is an action strictissimi juris, and cannot be maintained, except upon the clearest legal right of the plaintiff, made evident to the defendant by regular and authentic documents of title, at the time when the demand and refusal of transfer, relied upon, took place.
1. The defendant had recognized and accepted John H. McDowell as the owner, of these 473 shares of its stock, and had issued an obligatory certificate to that effect. John H. McDowell, and he alone, was the party to call upon the defendant to allow him to exercise his jus disponendi over this stock.
2. But John H. McDowell himself, by the very conditions upon which he held these shares, and expressed in his certifiof property and title, could demand of the defendant its concurrence and aid in the exercise of his jus disponendi, only upon the surrender of his own certificate, and by his own ex
p. 400
ecution of an act of transfer upon the books of the defendant at its office.
3. The act of transfer, however, might be executed (both on general principles and by the rules of the company) by procuration. In such case, before the company could be required to recognize the right of the attorney, the attorney needed to present an authentic document from his principal, empowering him to execute the act of transfer upon the books of the company. It was further requisite for the attorney to offer the surrender of his principal’s certificate of stock and the deposit of his power of attorney, and to require from the company, in behalf of his principal, the means and opportunity to execute the act of transfer authorized in and by the power of attorney. A refusal to the attorney, thus empowered and thus demanding, would place the company in the same position of responsibility for a denial to the principal of the exercise of his jus disponendi, as if made to the principal attending in person.
II. It is apparent, on the proofs, that the plaintiff’s demand of the transfer of these shares to itself was not attended with the requisite right, either in form or substance, to subject the defendant to this action for a refusal of the transfer.
1. The only authority for the required transfer which the defendant could recognize, was John H. McDowell, and (in his personal absence) the only evidence of such authority which it could respect, was his written power of attorney.
2. The plaintiff neither had nor produced any authority from McDowell, upon which it could require a transfer of these shares to itself.
3. The plaintiff in . fact exhibited the authority and direc- ' tion of McDowell for the transfer of these shares to other persons than the plaintiff, viz : 100 shares to Dibblee & Cambios, and 373 shares to P. & F. Jaudon.
4. The attorney of McDowell, J. H. Ferdon, did not demand or require permission to make the transfer, nor in any manner insist upon the right of his principal to make the same.
III. These essential defects in the plaintiff’s position are not
p. 401
cured by the circumstances given in evidence by the plaintiff in that hope.
1. The certificates of Dibblee & Cambios and of P. & F. Jaudon, that they had no interest in the shares, and their consent that they might be transferred to the “ person or persons entitled,” conveyed no authority, or implication of authority, from McDowell, to transfer to any other person than themselves. These certificate's only served, pro tanto, to annul the power of attorney presented by the plaintiff.
2. The request, assent or'wishes of Dibblee & Cambios, and of P. & F. Jaudon, as to any transfer of these shares, following a repudiation of any interest in them, were wholly immaterial to the defendant. It is the requests, assents and wishes of those who have an interest in the shares, not of those who have not, that are important to the company.
3. Notwithstanding all this evidence, the transfer permitted by the company to the plaintiff, upon the only document from McDowell offered to justify it, would have been without authority, irregular and void.
IV. The evidence shows that a dispute as to the title to these shares had arisen and been brought to the notice of the defendant, by the service of an injunction against any transfer of them. It was the plaintiff’s misfortune, or folly, to take an equitable claim upon these shares, severed from a regular and authentic legal title. In this predicament it cannot throw upon the defendant any enlarged duty or responsibility in the premises, or mulct it in damages for an adherence to its own rights. The remedy of the plaintiff is by suit in equity, to which McDowell, Dibblee & Cambios, P. & F. Jaudon and the defendants are parties, to have its equitable interest in the stock executed by a transfer of the legal title.

It is evident this action cannot be maintained except upon the clearest legal right of the plaintiff, made evident to the defendant by regular and authentic documents of title at the time when the demand and refusal of transfer relied upon took place. The evidence clearly shows that Mc

Dissent

p. 402
Dowell was the owner of these 473 shares of its stock, and that the company had issued an obligatory certificate to him to that effect; it must, therefore, follow that he, and he alone, was the party to call upon the defendant to allow him to exercise his jus disponendi over this stock ; nay, more, McDowell himself, by the very conditions upon which he held the stock, could demand of the defendant its concurrence and aid in the exercise of his right to dispose of the stock only upon the surrender of his own certificate, and by his own execution of an act of transfer upon the books of the defendant at its office. It is quite true the act of transfer might be executed by procuration. In such case, before the company could be required to recognize the right of the attorney, the attorney needed to present an authentic document from the principal, empowering him to execute the act-of transfer upon the books of the company, and this was not done in this case ; on the contrary, Perdón, the attorney named, being present, did not demand the stock. The only authority for the transfer which the defendant could recognize was McDowell’s, and in his absence his written power of attorney; and it is very clear the plaintiff failed to prove authority from McDowell upon which it could require a transfer of the shares to itself ; on the contrary, it is in evidence that he had ordered the transfer of these shares to other persons than the plaintiff, viz. 100 shares to Dibblee & Cambios, and 373 shares to P. & F. Jaudon, and the certificates of Dibblee & Cambios and of P. & F. Jaudon, that they had no interest in the shares, conveyed no authority from McDowell to transfer to any other person than themselves. The certificates only served pro tanto to annul the power of attorney presented by the plaintiff.

Moreover, on examining the proof, I find there was a dispute as to the title of these shares ; the defendants knew this, because they had been enjoined against any such transfer.

I therefore hold, upon the evidence in the case, that a recov- . ery would have been without authority, irregular and void.

The judgment below should be affirmed, with costs.

Bakboub, J. concurred.

It does not appear upon which, of the three objections the learned justice dismissed the complaint ; but if any one of them is sufficient, the nonsuit cannot be set aside. The evidence established that the plaintiffs were the owners of the certificate in question, and were entitled to a transfer of the stock. The Jaudons and Dibblee & Cambios, the transferees named in the assignment and power of attorney, had transferred all their interest in the stock to the plaintiffs, and were present and consented, both orally and in writing, to the transfer to the plaintiffs. The plaintiffs had paid a valuable consideration, and were the holders and owners, and had the certificate in their possession, ready to be surrendered on the transfer being made. These facts dispose of the second and third objections.

As to the first, the plaintiffs were entitled to the transfer, if a transfer was demanded in a sufficient and proper manner. (Commercial Bank v. Kortright, 22 Wend. 348 .) No reason appears to have been stated for refusing to allow the transfer to be made. No objection was made to the form of any of the papers, nor was it claimed that the plaintiffs were not the owners of the stock, or that any other person or persons had any interest in it. It seems to have been a mere arbitrary refusal, without assigning any reason whatever therefor. The only issues required to be proved by the plaintiffs were, their ownership of the shares, and their right to have them transferred. Those issues were proved by the testimony of the president of the plaintiffs’ company, and by the production of the consents of the Jaudons and Dibblee & Cambios to the transfer.

As between all the parties to the transaction, the plaintiffs had a complete title to the stock ; and as the case stood when they rested, no question had been raised touching such title, or right to a transfer.*

The duty of the defendants was simply to allow a transfer to be made on their books by the principal or his attorney, on a surrender of the certificate.

It does not appear by whom, nor when, the name of Ferdon, the attorney, was written in the power; but it does appear

p. 404
that he was the transfer clerk of the defendants, and that he was present when the transfer was demanded, and was about to do it, when the defendants’ vice-president objected to. it.

It was claimed on the argument that Ferdon, the attorney, did not demand the transfer, and that the defendants were not authorized to allow the transfer to be made by any person other than the principal or his attorney. No one, I think, can read the evidence, and fail to believe that Ferdon was ready to act. He was about to do so, when he was directed by the defendants not to. He was an employee of the defendants, and subject to their direction and control. The transfer books were the property of the defendants, and Ferdon could not execute the act of transfer against their objections. It seems to me the objection stands upon too narrow ground. The only interest the defendants had was to see that the transfer was made conformable with their by-laws. If the principal or his agent made the transfer, and surrendered, the certificate, no responsibility whatever devolved upon the defendants. They owed no duty to see that the true owners got the stock, but were simply required to open their books and allow the transfer to be made. If, without right, the defendants refused of prevented the transfer from being made, they rendered themselves liable. (Commercial Bank v. Kortright, supra!) In the case cited, it was held that the assignment and power transferred the legal title to the stock to the holder, although not registered in the transfer book of. the corporation, notwithstanding a statutory provision that no transfer shall be valid unless so registered. Aud this court, in Purchase v. N. Y. Exch. Bank, ( 10 Bosw. 564 ,) decided the same way. The .condition requiring the transfer to be made on the books of a corporation is merely for the convenience of the bank, in paying dividends and ascertaining who are legal voters, and possibly, to prevent escape from liability of such as ought to contribute.

The condition is not for the protection of the corporation. As between the vendor and purchaser, the title is perfect, and the transfer can be made at any time ; until made, the corpo

p. 405
ration is at liberty to treat the vendor as owner, and their dealings with him would be protected..

The position of the respondents involves the idea that the defendants had the right to object to the transfer being made. They had no such right. If the condition named in the certificate was complied with, they were bound to permit the transfer. No considerations of ownership or of value, or of good faith, could authorize the defendants to withhold their transfer book, or to refuse to transfer ; and I apprehend the error of the learned justice arose from a mistaken view of the duty of the defendants in regard to transfer of stock.

The defendants interposed, and prevented the transfer. It appears to me to be hypercritical to say the demand was not sufficient, because it was not made by Ferdon, the attorney named in the power. The plaintiffs owned the stock. Their title was perfect, and they merely desired to comply with the condition named in the certificate. The certificate had been executed in blank, and the name of the defendants' transfer clerk had afterwards been written in by some one. The plaintiffs presented the certificate, assignment and power to the same transfer clerk, and demanded that the shares be transferred to them. The transfer clerk was about to do it, when he was prevented by the defendants. This was all, it seems to me, the plaintiffs were required to do. It was all they could do, and the action of the defendants clearly, in my judgment, put them in fault.

The case might be otherwise, had the defendants placed their refusal upon some objection to the sufficiency of the papers, or of the demand. They might have said, we can allow the transfer only on the request of McDowell, or of his attorney, neither of whom make the request. Such objection, had it been made, might have been removed by producing McDowell and his making the request, or by getting his attorney, then present, to make it, It is too late now to make the objection for the first time, and the silence of the defendants, when they might have spoken, must conclude them.

p. 406
I am of opinion that the plaintiffs made out a prima facie right to recover, and that it was error to dismiss their complaint.

Judgment affirmed.

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