Gillett v. Gillett

Headnote

Damages—Conversion—Market value of stock fixed by what defendants, standing in position of trustees, had testified to and had failed to testify to.

Appeal from judgment entered upon verdict of jury, and from order denying motion for a new trial made upon the minutes.

Action for damages for conversion of a certificate of 6000 shares of stock of the Long Distance Telephone Co. The litigated issues were, as to whether the plaintiff was entitled to the possession of the certificate; as to whether he had duly demanded the certificate from the defendants; and as to the value of it. The certificate had been transferred to the' defendants, with other certificates of the same kind, with the privilege to the defendants of purchasing at $1.25 a share. The de

fendants agreed, if they did not buy, “ to return said Clark and Wiggin and Gillett, respectively, on demand after October 1, 1885, all the stock remaining in our hands, in the proportion as the same has been placed by them with us.” The defendants did not buy any of the shares transferred to them. The plaintiff demanded of the defendants that they deliver the stock to him. The demand was refused. The defendants, on October 24th, wrote to the plaintiff a letter in which they claimed that the plaintiff was indebted to them in the sum of $200, and then informed him, “ upon payment of this sum, we shall be glad to return your certificate for 6000 shares .telephone stock.” In the February following, the defendants began, in the City Court of New York, an action, the complaint in which averred that the defendants had loaned the plaintiff certain moneys; that “prior to such advance the defendant had deposited with the plaintiffs, with an option to the plaintiffs to buy within a certain time 6000 shares of the capital stock of the Long Distance Telephone Company..... and plaintiffs now hold certificate No. 337 of said company for said 6000 shares”; that “the defendant agreed in consideration of said advances that the plaintiffs might hold said 6000 shares as security for the repayment of said amounts. No part thereof has been repaid, and the plaintiffs at the time of the commencement of this action had, and noAV have, a lien upon said stock for the amount of such advances.” The judgment was that the defendants had no lien upon the stock.

The testimony as to the value of the certificate, at the time it was converted was given principally and substantially by the defendants themselves, and one of their clerks. The defendant Miles testified that, down to September 18, the defendants had sold 15,009 shares at an average price of $4 a share. The defendants did not give any competent testimony to show that the market price or real value became less after September 18. The testimony most favorable to defendants on this

point was from the clerk, who said, “I tried to get bids. I tried to get bids from our different customers in the office; tried to see if they wanted any more ; from all the parties that had any stock; and I couldn’t get any bid at all; they would not give anything for it.”

The Court at General Term (after stating the facts as above) said:— This gives no solid information as to the value of the stock. His efforts may not have been of a kind fitted to induce a sale, and the parties addressed by him may have refused for reasons not connected with the value of the stock. It is true that one of the defendants testified that he did not think that the stock had value after September. Such testimony did not benefit parties who clearly were wrong doers, who, in an equitable sense, were trustees of the plaintiff, and who, having knowledge of the facts could have testified to them clearly, and if the testimony would have helped them, would have given it. I am of opinion that the value affixed by the jury to the stock was in accordance with the just inferences, from what was testified to, and from what was not. testified to by the defendants.”