Delahunty v. Hake

Van Brunt, P. J.:

This action was brought to recover from the defendant a certificate of thirty shares of stock. The plaintiff brings the action as receiver of one George W. Proctor Knott.

It appeared that on the 10th day of January, 1891, the said Knott entered into an agreement with one Philip Hake, by which, after reciting that Knott had been in the employ of Hake for many years, and had recently entered into the employment of a' corporation known as the Philip Hake Manufacturing Comjiany, and that said Hake was desirous that said Knott should remain with said corporation, the said Hake agreed to deposit with the trustees of said company a certificate for thirty shares of the stock of the company under the terms and provisions of the agreement; and tlie said Knott-' agreed to remain in the employ of the company, either as an officer ór employee, until the 31st of December, 1895, or, in case of his death in the meantime, until the date of his death, and to-serve the said corporatioh'to the best of his knowledge and ability, and to do all that lay in llis powér to enhance the value of the stock - of the corporation, having the privilege, however, at- any time, to terminate his connection with the coipóration, in which event he was to be entitled to receive a! proportionate part of said shares of stock from the 1st of January, 1891, to the date of the termination of his connection.

The agreement further provided that, on the ¿1st of-December, 1895, if Knott then remained in the employ of the corporation, or his employment should terminate on that date, the trustees were authorized to deliver said certificates of stock to Knott.

The agreement further provided- that -the cause of the termination, of the connection between Knott and the corporation should have nothing to do with the terms and conditions of the agreement; and, further, that no interest in the agreement, or interest in the shares of stock, could be or should be assigned or transferred by Knott until he was entitled to the possession of such certificates under the terms of the agreement.

It further appears that on the 29th of May, 1895, said Knott assigned all his interest in the stock and in the agreement to one G. A. Knott, and that on the 21st of October, 1895, the plaintiff was appointed by an order of the Supreme Court receiver of the personal property of the said G. W. Proctor Knott and of the rents and profits of his real property.

The said Knott remained in the employment of the manufacturing company until the 31st of December, 1895. In October, 1895, the receiver made a demand iipon the trustees of the corporation for the delivery of the stock in question. There was no proof of any demand made after the 31st of December, 1895. There was evidence, on the part of one Wilson, who was in the employ of the plaintiff’s attorney as managing clerk, and who swore that he called at the office of the defendants’ attorneys in January with regard to the payment or delivery by the trustees of the company to the plaintiff of the stock in question; but what transpired at this interview does not appear. It does not appear that there was any demand made or any refusal to deliver. The court having found in. favor of the plaintiff, from the judgment thereupon entered this appeal is taken.

It seems to us that the failure to make a demand after the termination of the period in which the stock was to be held in escrow, is fatal to the maintenance of the action. The stakeholders have not been put in the wrong. Their possession was rightful and there is no evidence whatever of detention. A demand was made in October which they had the right to refuse, and there is not a particle of evidence of any subsequent demand having been made.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide event.

Barrett, Williams, Patterson and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.