Washburn v. Blake , 47 Me. 316 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

The plaintiffs in the original action, Messrs. Blake, Bigelow & Co., holding a certificate of ten shares in the Canton Bank, and being desirous of selling the same, on the 15th of August, 1856, wrote to the defendant to ascertain their value, to which he replied, informing them that, whenever the stock changed hands, it was at par. The defendant having, in his letter of Aug. 25, offered his services to sell the plaintiffs’ stock, .they, on the 26th of August, forwarded their certificate, transferred in blank, signed A. Pierce, with a request that he would return a new certificate in their name, or a check for the largest price which he could obtain, not less than $95, per share. On September 9, the defendant wrote that he had been unable to send the check as desired, but should probably be able to do it in a few days.

On the 1st of October, the defendant in the original action ceased to be cashier, and his son, Newell Washburn, was chosen in his place.

On the 13th of November, the plaintiffs wrote the defendant, that if he could not find a purchaser within three days at $95, per share, to send them a new certificate in their name, for the certificate in blank which they had sent.

On the 15th of Nov. the defendant, in answer, wrote that his son informed him some weeks ago, that he had sent $950, for the shares, and that “ they were transferred to a man in this town.”

On the 17th of November, Newell Washburn writes, that he supposed it was all arranged, and that he would see they should have the money “ this week without fail.”

An injunction issued from the Supreme Judicial Court on the 17th of Nov. and receivers were appointed, by whom the affairs of the bank were brought to a close.

On the 21st of November, the certificates of shares belonging to the plaintiffs were forwarded to them.

It appears that, about the first of October, a conditional sale of the stock had been made by Newell Washburn to one Russell; but, the conditions not being complied with, it was not carried into effect.

It appears probable that a sale would have been effected, about the middle of November, had it not been for the intervention of the injunction issued by this Court.

The evidence satisfactorily shows that the plaintiffs’ stock was never transferred, and that the defendant hás received no funds for or on account of it. No neglect is shown on the part of the defendant in not effecting the sale.

The funds of the bank appear to have been wasted, and its stock to have been of but little actual value.

The plaintiffs claim to recover on the ground that a sale had been effected, and that the proceeds of the same were in the defendant’s hands. But they entirely fail to support either of these allegations.'

Neither is the defendant estopped to show the fac.ts as they exist. He may have reasonably expected a sale; but, as none was effected, no reason is perceived why he should be charged. Whether he may have managed the bank discreetly, as cashier, is nothing to the present inquiry. The most he has written is that he supposed and was informed that the stock had been sold. But no estoppel was thereby created.

In the last count, the defendant is sought to be charged for having violated the instructions given on the 13th of November, which were to return the certificates if a purchaser should not be found within three days from the receipt of the letter containing them. The certificates were returned November 21st. Allowing one day for the letter of the 13th of November to reach the defendant, the certificates could not have been sent till after the injunction on the 17th of November. The plaintiffs, at most, can only complain of a delay of three or four days in the transmission of their certificates. But no rights of theirs are shown to have been impaired by this delay. The stock was equally valueless on the 13th of November, when the instructions were given, and on the 21st of November, when the certificates were forwarded.

The result is that the original plaintiffs have failed to show any cause of action.

Judgment for the plaintiff in review.

Tenney, O. J., and Rice, Cutting, May, and Goodenow, JJ., concurred.