Maryland Fire Insurance v. Dalrymple , 25 Md. 242 ( 1866 )

Bartol, J.,

delivered the opinion of this Court:

This suit was instituted by William F. Dalrymple against the Maryland Fire Insurance Company to recover damages for the alleged illegal sale and conversion, by the defendant, of three hundred and twenty-five shares of the capital stock of the Baltimore and Ohio Eail No ad Company, which Dalrymple had pledged to the defendant to secure the re-payment of a sum of money loaned to him by the company.

The verdict and judgment of the Court below were in favor of Dalrymple. Both parties have appealed.

The nar. originally filed, contained a single count in trover; the defendant pleaded and issue was joined; afterwards an agreement was tiled, that in lieu of formal pleadings the plaintiff should be considered as having amended his declaration by adding such counts in tort as the state of the facts, as they appear at the trial, would justify, and the same agreement as to pleas and replications and issues thereon. “The case to be tried on the pleadings as they now stand, all errors in pleading on both sides released, with leave to each party to give the special matter in evidence, reserving to each party, in case of appeal, the same benefit of exceptions as if formal pleadings had been put in.”

As a material question upon the pleadings is raised by the fifth prayer of the defendant, it is necessary for us to interpret tins agreement. The plaintiff’s counsel, in their brief, state, that “ all errors in pleading were released, the questions at issue are presented by the facts disclosed in the hill of exceptions and the instructions of the Court thereupon.” This is not strictly correct. As we understand the agreement, the plaintiff in his amendments was confined to his counts in tfoH, and' the suit must he dealt with as an action ex detidfy and as if the supposed amended counts in that form were-added.

With these preliminary remarks,, we proceed to state the1 facts of the case as disclosed in the Bill of exceptions. The terms, of the pledge are shown by'the receipt signed by the president of the compan y, dated the' 12th day of June, I860, and by Dalrymple’s receipt, of the same date, given to the company;, these papers correspond in'their terms, and it is only necessary' here to insert One of them, viz: that signed by the president of the company; and offered in evidence by the plaintiff; if is as follows r-

“I have this day advanced to William F. Dalrymple the Sum of nineteen thousand iivfe' hundred dollars, returnable upon one day’s notice, and he has deposited in my'hands as collateral security,.for the payment of the same, the following securities, viz: three hundred' and twenty-five shares' of Baltimore and Ohio-Rail Road' stock, now in the'name of E. Pratt & Brothers, but to Be transferred this day to my name as the President of the hiaryland Fire Insurance Company of Baltimore; with the understanding, that if the said loan is not promptly paid according to agreement, I am authorized, without further notice, to sell the said collaterals for the purpose of satisfying'the same; any excess or deficiency to be paid or received by him as the case may be; a margin of ten dollars per' share to'be kept up at all times during the rum ning of this contract.

Signed, Tiros. E. IIambceton,

Pres’f.

Endorsed", Baltvmore', Aug. 13, 1860.

Received interest on'the'wfthin loan, $268'.67, to this date.”’

The receipt or memorandum of loan signed by the plaintiff, by his agent, P. II. Coakley, contains, in addition, this memorandum, “interest payable every sixty days,,should tk© Same'continue'Beyond that time;”

Proof was offered by the defendant that the market price »of the stock was, as follows:

•On the 12th of June, 1860 $79 per share,

■“ “ 30th of Oct., “ :37(>i “ “

i£ ££ 5th of Nov., “ $69 ££ ££

££ ££ 10th of ££ ££ $68 ££ “

££ ££ 15th of ££ ££ $56|- “ ££

Evidence was given «of calls made by the defendant on the plaintiff, Viz-: 'On the 30th of October, 1860, a notice to return the loan on the 1st of November, 1860. On the 5th ¡of November, 1860, a notice to “deposit additional amount •of securities or larger margin” on the loan. On the 10th of November, 1860 a notice “to return nine thousand dollars of the loan, on Tuesday, the 13th instant.”

On the 13th of November, 1880, the following notice was given to the plaintiff’s agent:

“Mr. P. H. Coakley, Agent.' — Sir: On Saturday,'the 10th hist., we notified you to return on this day nine thousand dollars, being part of the loan made to you the 12th of June last upon three hundred and twenty-five shares of the Baltimore and Ohio Bail Bead stock; you have not complied with that call, and we now notify you to return to this company the whole of said loan, nineteen thousand five hundred dollars, on to-morrow, Wednesday, the 14th inst.”

Signed, Oib 'Sbisab, Sec’y.

By order -of the Board.

It was admitted that these notices were received by the plaintiff on their respective dates. It was also proved and admitted that there wmre negotiations between the plaintiff and defendant about the 15th of November, 1860, in consequence of the notices, the object of the same being to relieve the loan ; but they were ineffectual and had been terminated before the 20th of November, 1860.

Oil this last named day, the defendant procured the 325 shares of stock to be sold at the Board of Brokers, and became the purchaser thereof at $55 per share.

This sale and purchase were effected by the agency of brokers employed by the defendant, two of whom, Gildersleve and Whitridge, wore employed to sell at the highest obtainable market price, and Whitridge testified that the stock was accordingly put up and sold at the public board for the highest market price of the day; he had likewise instructions from Mr. Win. W. Spence to purchase said stock for him, Spence, at the market rate, and witness accordingly requested Mr. Edward Pittman, (another broker,) to purchase said stock for him, the witness, which was done. The sale was in all respects fair, and not covert in any particular; the witness requested Pittman to bid it in for him, because such is the usage of the board when the same broker has an order to buy and an order to sell the same lots of stocks from different parties, and in order that the sale might be recorded in the usual manner. The same broker cannot appear on the books as buyer and seller in the same transaction. No transfer was made to Pittman except on the books of the board; the stock was transferred to Spence next day and witness sent him the certificate. The same witness testified that Spence called at his office before the meeting of the board, on the day of sale, and informed witness, he knew witness had the stock for sale, and then instructed witness to buy for him. Witness did not know, till after the sale, that Mr. Spence was buying for the company. It was admitted by counsel, at the trial, that Spence was one of the directors of defendant, and made the purchase for the defendant.

It was admitted, that shortly after the sales of the 20th of November, 1860, an account was rendered to the plaintiff by the defendant charging the amount of loan and interest, and crediting the net proceeds of the sale, leaving a balance due defendant of $1,771.50, and payment thereof demanded.

Hie stock was held by the defendant till the spring of 1862, when it was sold in parcels to different persons, and on different days, between the 18th of March and the 1st of May, 1862, at prices ranging from $60 to $67 per share, yielding in the aggregate the sum of $19,943.75 net.

These sales wer'e made publicly at the Board of Brokers- — ■ fairly and in the usual way — at the ruling market prices, by competent brokers employed for that purpose, and the stock was transferred to the several parties purchasing the same.

It was proved by the plaintiff and admitted, that a dividend of three per cent. ( $3 per share) was declared on the stock and paid to the defendant on the 27th of October, 1860, and handed over to the plaintiff; that the defendant received a similar dividend on the 16th of April, 1S61, and applied the same to its own use; also, that dividends to the same amount were declared on the same stock, payable on the 30th of May and 30th of September, 1862, and on the 31st of March, 1868; also, a dividend of six per cent, on the 26th of October, 1S63, and a dividend of four per cent, on the 26th of April, 1864; but that the defendant received none of the said dividends except the first two above enumerated. It was further admitted that the plaintiff paid interest on the loan, in full, to November, 1st, 1860.

On the 16th day of December, 1862, the plaintiff tendered to the company the sum loaned, with interest, and demanded a return of the stock, to which the president of defendant replied, “that the said shares had been sold and were no longer in the defendant’s possession,” and declined to accept the tender.

Proof was offered (subject to exception) that at the time of the tender the stock was worth in the market about $78 per share, and that at the time of the trial it was worth about $115 per share. Proof was offered by the defendant that on the 20th of November, 1860, the stock was worth no ira ore than $55 per share, and between that day and the day of tender fluctuated in value, and-on the 25th of April, 1861., was sold as low as $41.50 per share.

Upon this state of facts the plaintiff presented two prayers, and the defendant five prayers, these were all refused, and the Court below gave an instruction to the jury.

The propositions presented by the plaintiff’s prayers were;

1st. That upon the tender, demand and refusal made in December, 1862, notwithstanding' the previous sales of the stock, the plaintiff was entitled to recover; and in assessing the damages the jury might value the stock as worth the highest price which could be 'obtained for the same in the exchange market at the time of the trial, and that the defendant was chargeable with all dividends on the stock declared after the pledge and before the time of trial which, by reason of the pledge, the plaintiff was disabled from recovering, and which might have been realized by the defendant if it had kept the pledge.

2nd. If it should be found that the bailment had been determined, and the relation of pledgor and pledgee destroyed by the sale in November, 1866, or by those made in the spring of 1862, then that the defendant’s lien on said stock, as a security, was thereby terminated, and no discount or recoupment from the value of the stock, to be ascertained as aforesaid, ought to be made for or on account of the money ■ loaned by the defendant to the plaintiff. The defendant’s prayers asserts:

1st. That the sale of the 20th of November, 1860, if the jury find it -was made bona fide, was valid and binding in law, and if the proceeds thereof did not amount to the principal and interest of the loan, the plaintiff was not entitled to recover.

2nd. That the sale of the 20th of November was not void, but voidable only by proper proceedings in a Court of Chancery, upon grounds not cognizable at law.

SrcL That if the plaintiff is entitled to recover, then the’ measure of damages is the market value of the stock on the 20th of November, I860, deducting therefrom the amount of the loan and interest then due. (.The theory of this prayer; is, that the sale and purchase of the stock made, on the 20th of November, 1860, -was a conversion, and' operated to break up the bailment.)’

4th. If tbe first three prayers should be rejected, then that the sales and transfer of'the stock made in the spring of 1862', operated as a conversion thereof, snd the measure of damages is the market Value of the stock at that lime, together with the dividend actually received by tbe defendant, deducting therefrom the amount of the loan and interest then due.

5th. That the' sales’ made in the spring of 1862 were legal and not tortious, and even if the jury should find the pro* ceeds of such sales, together with the dividend received by the defendant, exceeded the amount of the loan and interest then due, the plaintiff is not entitled to recover such excess in this form of action.

The Court below seems to have considered the sales in I860- and 1862 as wholly void and inoperative, and the bail* ment still continuing, and instructed the jury that upon proof of the pledge, and the tender, demand and refusal in December, 1862, the plaintiff was entitled to recover,- and the measure of damages was the market value of the stock at that time, together with the dividend received by the defendant in April, 1861, deducting therefrom the amount of the loan and interest. Having' thus stated the positions taken by the parties in their several prayers, and by the Court below in its instruction to tlie jury, we shall proceed to express, as briefly as wo can, the judgment of this Court upon the questions involved, so far as they are deemed material to the decision of the case. In doing so, we shall confine ourselves mainly to a statement of the conclusions we have reached after a careful examination- of all the authorities cited in argument, -without attempting to refer to them particularly, or to reconcile them where they may be in conflict. To do so, would require this opinion to be extended to very great length, without perhaps subserving any good purpose.

The first question that naturally presents itself for 'our consideration is the effect of the sale and purchase of the stock made by the defendant in November, 1860. By the terms of the contract, the loan was payable on one day’s notice, and if not paid according to the agreement the defendant was authorized, without further notice, to sell the stock pledged for the purpose of satisfying the same. Unquestionably, the notice given on the 13th of November was sufficient, under the contract, to entitle the defendant to sell on the 20th.

In the absence of any express agreement to the contrary, it has been held in some cases to be necessary for a pledgee, before exercising the power of sale, to give notice to the jfledgor of the time and place of sale. Washburn vs. Pond, and another, 2 Allen (Mass.) Rep., 474; and the same rule was announced by the Superior Court of New York, in Wheeler vs. Newbold, 5 Duer, 29, and by the Court of Appeals in the same case. 2 Smith, (16 N. Y. Rep.,) 392.— Without expressing any opinion upon the law as laid down in those cases, it is clear it can have no application to a case where such notice is dispensed -with by the contract of the parties. Here, by the words of the agreement authorizing the defendant upon default to sell without further notice, we understand that when the power to sell arose, all notice of the time and place of sale was waived and dispensed with by the plaintiff, leaving upon the defendant the obligation to sell publicly and fairly for the best' price he could obtain.— See 2 Kent's Com., 582, 583.

A sale at the Board of'Brokers, publicly and fairly made, would, in our opinion, have been legal and valid, and if the sale of the 20th of N ovembor had been made to a third person it would have been a legal sale under the contract, vesting a good title in the purchaser and terminating the bailment. It was contended by the plaintiff’s counsel, that the sale must, in all cases, he made at public auction, and that a sale at the Brokers’ Board would not bo legal; and some decisions in .New York were cited in support of this view.

In Brown vs. Ward, 3 Duer, 660, it Avas. said, that “a custom has grown up, (in New York,) and been sanctioned by tbe Courts, of selling stock at the Merchant’s Exchange.”

There is no evidence of any such custom in Baltimore, and considering the requirements of the law, and the reason and nature of the transaction, Ave are of the opinion that the most proper and suitable place for a sale of stock is at the Board of Brokers. There is the stock market — the mart to which vendor’s and purchasers resort, by their agents, to buy and sell stock, whore competition among bidders is most apt to be found — such sales are public, and unless there he, in the particular case, some ground for impeaching their fairness, we are of opinion they are reasonable and ought to be supported.

But, as we have seen, tiro defendant became itself the purchaser of the stock, and the question arises, Avhat was the legal effect of the proceeding ? Did it amount to a valid and effectual sale so as either to vest in the defendant, as purchaser, an absolute title, or to operate as a conversion of the property, break up the bailment, and the relation of bailor and bailee betAvecn the parlies ?

The doctrine, that trustees, executors, administrators and others, holding fiduciary relations, are incompetent to purchase the property held by them in trust, is well settled. See Story’s Eq. J., secs. 321, 322, 323, where the cases are collected. In section 323, the learned author says: “There are many other cases of persons standing in regard to each other, in like confidential relations, in which similar principies apply.” Lord Chancellor Cottenham, in Greenlaw vs. King, (5 Lond. Jur., 18,) cited in Torrey vs. Bank of Orleans, 9 Paige, 663, held that “the principle was not confined to a particular class of persons, such as guardians,, trustees or solicitors, hut was a rule of universal application to all persons coining within the principle, which is that no party can be permitted to purchase an interest where he has a duty to perform inconsistent with the character of purchaser.” See, also,. 12 Md. Rep., 384. 16 Md. Rep., 456. 20 Md. Rep., 117. This rule rests upon grounds of public-policy, and is enforced without regard to the question of' ionafides in the particular case. It is clearj both upon reason and authority, that the case of pledgor and pledgee comes-within the rule..

In Story on Bailments, sec. 319, it is said: “In respect of sales, also, there is a salutary restraint upon the pawnee to secure his fidelity, and good faith that he can never become-a purchaser at the sale. This rule will be found recognized equally in the common law and the Homan law.”

It has been argued, on the part of the defendant, that this is a purely equitable doctrine, to be enforced only in Courts of Equity on grounds not- cognizable at law; and while such sales are voidable in equity, they must be treated in thisforv/m as valid..

This question is not free from difficulty, but the conclusion we have readied, from an examination of the cases, is clearly expressed in the third point of the plaintiff’s brief.

"While in cases of pure trust,.where exclusive jurisdiction is in equity, resort must be had to that tribunal for relief; and sometimes,, in cases of quasi trust, that court will grant relief where there are special circumstances requiring such interference, (as in Hasbrouck vs. Vandervoort, 4 Saund. S. C. Rep., 74;) yet the relation of pledgor and pledgee, being a legal relation, its rights and duties are defined by law, and', the remedies for violation of such duties are ordinarily in a-Count of Law.

The sale of the pledge, by tho defendant to itself, was -con-1 irary to the faith of tlie bailment, forbidden, as we have j shown by the citation from Story, by the common law, and! might be treated by tlie bailor, at Ids election, as a tortious] ■conversion of the property. Ip. this ease, no such election was made by tho plaintiff There was no transmutation of title or change-of possession, and the sale being inoperative to work a conversion, the relation of the parties remained unchanged thereby. Tho defendant remained in possession ■of the slock as before, in the same manner as if the sale had been attempted, and both, in fact and in contemplation of law, the bailment continued. This point was decided in Middlesex Bank vs. Minot, 4 Met., 325. That decision was followed by the Supremo Court of Iowa in The Bank vs. Dubuque R. R. Co., 8 Clarke, 277.

Looking at the reasoning upon which those decisions rest, and the rules and principles of the law governing contracts of this description, we aro of opinion that tlie decision in 4 Metcalf, so far as this point, is concerned, was correct. The •sale of the 20th of November did not operate, either to vest the title in tlie defendant, as purchaser, or to work a commrsion of the stock. The bailment continued, and if nothing more had been done subsequently, and the stock liad remained in the defendant’s possession, there can be no doubt that tho tender and demand made on the 36th of December, 1862, would have boon valid, and the refusal on the part of the defendant, at that time, would have given a good cause of action to the plaintiff. But it appears from the proof that before that timo, in the spring of 1862, the defendant caused tlie stock to be sold publicly at the Board of Brokers, and it was transferred to tho several purchasers. What was the eiToct of those sales? Having given notice to pay the loan in November, 1860, the defendant was not bound to keep tlie pledge ; tho attempted sale of the 20tli of November being inoperative, and the plaintiff, continuing in default. the power to sell, conferred by the contract, still continued, and was, in fact, executed by the sales made in 1862. As we have already said, no further notice was required by the contract, nor can any valid objection be made to the place and mode of sale, the same not being impeached on the ground of unfairness or bad faith. By those sales the bailment was ended, and being made, as we have said, in the lawful and valid exercise of the power of sale, there was no violation of the contract on the part of the defendant, or any tortious conversion of the stock, and, therefore, the plaintiff was not entitled to recover in this form of action; and the fifth prayer of the defendant ought to have been granted.

The sales and transfer of the stock made in 1862, being valid and legal, the plaintiff would have the right to recover in an action ex contractu any excess which might remain in the hands of the defendant arising from the proceeds of these sales, including the dividend received on the 16th of April, 1861, with which the defendant would be chargeable, after deducting the amount of the loan and interest due at that time; such excess would be simply money had and received by the defendant to the use of the plaintiff, under and in conformity with the contract; oven if the sales had been tortious, we entertain the opinion that the true measure of damages would be as stated in the defendant’s fourth prayer, which asserts the right of the defendant to recoupe from the damages the amount of the debt; but that question does not arise in this case; the sales not being tortious, there could be no question of the right of the defendant to retain, out of the sums which came to its hands, the amount of the loan and interest; and even in a proper form of action the excess only could be recovered. But the question arising upon the pleadings is not of any practical importance in this case, because it is evident from a simple calculation that the money which actually came to the defendant’s hands, from the sales of the stock and the dividend of April, 1861, was less than the debt and interest due, and nothing, therefore, could bo recovered by the plaintiff in any form of action.

(Decided June 28th, 1866.)

The conclusion from this opinion is that there was no error in rejecting the plaintiff’s prayers, and the first, second, third and fourth prayers of the defendant. But the Court below erred in rejecting the fifth prayer of the defendant, and in the instruction given to the jury; the judgment will, therefore, be reversed on the defendant’s appeal.

Judgment reversed.