Baltimore Marine Insurance v. Dalrymple

Bartol, J.,

delivered the opinion of this court.

This suit was brought by Dalrymple to recover damages for the alleged conversion by the defendant, to its own use, of seven hundred and seventy shares of the capital stock of the Baltimore and Ohio Rail Road Company, eleven hundred shares of the stock of the Northern Central Rail Road Company, live bonds of the Baltimore and Ohio Rail Road Company, each for the payment of $1000, with interest, and ten bonds of the same company, each for the sum of $500, with interest.

The first declaration filed was in trover, to which the defendant pleaded and issue was joined; afterwards, it was agreed, “that in lieu of formal pleadings the plaintiff shall be considered as having amended his declaration by adding such counts in tort as the state of facts, to appear at the trial, would justify; and that the defendant shall be considered as having filed such pleas as the state of facts, as they appear at the trial, would justify, — and issues thereupon joinedand with this agreement the case was to be tried upon the pleadings as they then stood, “all errors in pleading on both sides released, with leave to give the special matter in evidence; reserving to each party the same benefit of appeal as if formal pleadings had been put in.”

After the evidence, disclosed in the bill of exceptions, had been given, the plaintiff presented nine prayers, of which *300 the fourth and fifth were withdrawn, and the seventh has been omitted from the transcript of the record j the rest were all rejected by the Court below except the third, which was granted with a modification set out in the Court’s instruction.

The defendant offered eleven prayers, all of which were rejected except the ninth. Both parties excepted to the ruling of the Court, and both parties have appealed.

It is not considered necessary here to state the several propositions of law contained in the-prayers and the Court’s instruction, or to recapitulate the facts offered in evidence and contained in the bill of exceptions. The former will be noticed incidentally in the course of this opinion; and with regard to the latter, so far as we deem them material in the decision of these appeals, there seems to have been no dispute.

The stocks and securities for the alleged conversion, or illegal disposition of which by the defendant, the suit is brought-, were pledged by the plaintiff to the defendant as security for certain loans. The terms of the pledge are evidenced by written contracts -offered in evidence, and are very similar to those recently before us in the case of The Maryland Fire Insurance Company vs. Dalrymple. They contain the same stipulations, requiring additional securities, by way of margin, to be furnished when called for during the continuance •oí the loans; binding the plaintiff to repay the loans within a certain stipulated time after the same shall be demanded, and in case of default authorize the defendant, “without further notice,” to sell the stock and securities pledged for the purpose of satisfying the same. Some of the loans were repayable on one day’s notice, and some on tl :ee days’ notice.

It appeared in evidence that some of the securities, that is to say, one hundred shares of the stock of the Northern Central Rail Road, one hundred shares of the Baltimore and Ohio Rail Road Company stock, and $5000 of the dividend *301 bonds of the Baltimore and Ohio Rail Road Company, were deposited in pledge with the defendant as margins or further security on the general loans; and on these last an additional loan of $1000 was made. With regard to these particular pledges, thus deposited by way of margin, no express stipulation was made, and the defendant, in its ninth prayer, asked the court to instruct the jury, that it (the defendant) had the right to sell them upon the longest term of notice stipulated in the written agreements offered in evidence, as to the previous existing loans and pledges constituting the general indebtedness, in the terms thereof. This prayer the court granted, and in our opinion there was no error in this ruling, or in rejecting the second prayer of the plaintiff relating to the same subject. It is obvious that the securities pu t up as margin were pledged according to the terms of the written contracts — this is the plain meaning of the contract —the rule being that the accretion follows the main body, and is subject to the same conditions.

It appeal’s from the proof, that in November, 1860, due notice, according to the contracts, was given to the plaintiff to repay the money loaned, and upon his default, the defendant proceeded to sell the stocks and securities pledged, publicly at the Board of Brokers in Baltimore, all of them except the seven hundred and seventy shares of the Baltimore and Ohio Rail Road stock were then sold, that is to say: five hundred shares of the Northern Central Rail Road stock, on the 15 tli of November ; and on the 20th of November, the other collaterals, except the stock of the Baltimore and Ohio Rail Road Company, were sold in the same manner to various persons, after express notice of such intended sales had been given to the plaintiff.

The effect of such a sale has been fully considered by this Court in the case of The Maryland Fire Insurance Compang vs. Dalrymple, (antep. —,) in which it was held, that sales so *302 made are valid and legal under contracts like those now before us; and for reasons stated in the opinion in that case, it was decided that no valid objection could be urged against them by reason of their being made at the Board of Brokers. It follows, therefore, that the sales of the collaterals which were made to third persons in this case, not being impeached on the ground of fraud or unfairness, were legal and valid, and in respect to them the plaintiff cannot maintain the present suit.

It remains now to consider what are the rights of the parties in respect to the seven hundred and seventy shares of the stock of the Baltimore and Ohio Rail Road Company.

That W'as put up for sale at the Board of Brokers on the 20th of November, 1860, and bought by the defendant through the agency of a broker employed for that purpose. Precisely the same kind of transaction came before us for examination in the case of the Maryland Fire Ins. Co. vs. Dalrymple, before referred to, and it was declared that both in a Court of Law and a Court of Equity such a sale by a pledgee to itself, in the absence of consent or acquiescence on the part of the pledgor, was illegal and ineffectual to pass the absolute title to the pledgee as purchaser. Secondly, that it did not operate as a conversion of the property so as to break up the bailment, except at the election of the pledgor, and in the absence of such election the bailment continued in the same manner as if such attempted sale had not been made. According to that ruling the first and second prayers of the defendant in this case were properly refused.

After the attempted sale and purchase of the stock by the defendant, as stated in the testimony of Marcus Denison, some apprehension was felt that the stock, which had been bid in at $54| per share, would still further decline, and at a session of the Einance Committee of the defendant, the same evening, objections were made to holding the stock ; whereupon the witness offered to purchase it at $55 per *303 share, and proposed that bis offer might be held till the next day. On the next day the committee declined the offer, but offered to sell at $56 per share, at which price witness purchased the seven hundred and seventy shares on the 21st of November, 1860, and the stock was transferred to him. Immediately afterwards, the plaintiff was informed of the sales of the stock at the board, and also of the purchase made by the witness.

There is some conflict of testimony as to the reply made by the plaintiff on receipt of this information. It has been argued on behalf of the defendant, that there was evidence from which the jury might find consent and acquiescence on the part of the plaintiff in the disposition that had been made of the stock, and on this hypothesis the sixth, tenth and eleventh prayers of the defendant are based. In the view we take of the case, the question presented by these prayers is not material. We think, however, there was no error in rejecting them, and shall proceed to consider the other questions presented, assuming that there 'was no evidence of such acquiescence on the part of the plaintiff as to defeat this action.

Proof was offered that on the 17th day of December, 1862, the plaintiff tendered to the defendant the amount of the loans with interest, and demanded a return of all the stock and collaterals pledged; the tender was made to the defendant’s agent, who replied, that “he thought the matter was settled,” and refused the tender. Evidence was given that the stock of the Baltimore and Ohio Rail Bead Go. was worth $77 per share on the 17th of December, 1862; and it was also proved that the same stock had fluctuated in value from November, 1860, selling in April, 1861, as low as $40 per share.

It was also proved, that there were dividends on the same stock on the 27th of October, 1860, the 15th of April, 1861, the 28th of May, 1862, and the 30th of September, 1862, *304 and that the interest on extra dividend bonds was payable in June and December, and was paid in full to all parties claiming it to June, 1st 1862, when it ceased to bear- interest and was converted into stock of the company.

The questions presented for our decision are: 1st. As to the plaintiff’s right to recover, 2nd. As to the measure of damages. 3rd. As to the right of the defendant to reeoupe from the damages the amount of the loans.

~We have virtually determined the first question in the case of The Maryland Fire Insurance Company vs. Dalrymple. As we have already said the attempted sale and purchase by the defendant at the board was inoperative; the, possession of the stock remaining unchanged, the bailment continued thereafter as before. Rut notice having been given under the contract, and the plaintiff being in default, the power to sell continued, and if it had been legally exercised no action of tort could be maintained. Rut according to the rule laid down in the former case, the defendant had not the legal right to dispose of the stock at private sale. The sale so made to Denison on the 21st of November, 1860, was therefore contrary to the duty of the defendant as pledgee and in law tortious, for which, the plaintiff is entitled to .^maintain his action either in trover or ease.

The next question is, what is the measure of damages ? The plaintiff in his sixth prayer asked for an instruction to the jury that they might, in their discretion, assess the value of the stocks at their highest market value on the day of trial, or on any other day before that time, and after the day of the demand and refusal.

The Court rejected that prayer, and instructed the jury that “ in estimating the damages they were bound to give to the plaintiff what they might find from the evidence to have been the market value of the seven hundred and seventy shares of stock on the 17th of December, 1862, with interest thereon, deducting therefrom the sum loaned and interest.”

*305 After a mature consideration of tins question and a careful examination of all the authorities cited in argument, we are-of opinion that this instruction was erroneous, and we consider the proposition contained in the plaintiff’s sixth prayer as still more untenable. The tori complained of here, and which is the ground of this action, was committed on the 21st of November, 1860, by the sale and transfer of the stock to Denison. The plaintiff’, well knowing the fact, lay by until December, 1862, when he made the tender and demand, long after the stock had been parted with, and when it was no longer in the defendant’s power to return it, and then assuming to treat the refusal to comply with tire demand as the tortious act, attempts to make it the ground of his action. This is not only contrary to reason, but in direct opposition to the well settled principles of the law.

The solo object and design of the law in awarding damages to a plaintiff, is to compensate him for the injury 'he lias actually suffered from the wrongful act of the defendant. Wo leave out of view that class of cases in which, by reason of the bad faith or moral turpitude of the act complained of, exemplary or primitive damages, by way of smart money, are allowed. This is not a case of that kind. The torticiis act of the defendant was in the breach of legal duty arising out of the contract, and the damages ought to be compensad tory merely.

In actions ex contractu between vendor and vendee, brought to recover damages for a breach of the contract of sale, the rule of damages Is well settled. In Tempest vs. Kilnor, 3 Man Gr. & Scott, (54 Eng. C. L. Rep., 248,) decided in 1846, which was assumpsit by vendee on a contract for the sale of shares in a projected railway, it was held that the measure of damages was the difference between the contract ,price and the actual price at the time when the shares ought to have been delivered, that is, at the time of the breach, and the *306 plaintiff could not recover beyond that day. Tindal, C. J., said “the plaintiff had no right to lio by until the concern became profitable.” The same rule was applied in trover, in Reid and Stewart vs. Fairbanks and others, in the Common Pleas, 4 J. Scott, (76 Eng. C. L. Rep., 692.) In Hill vs. Smith and Carpenter, 32 Verm. 433 , assvmpsit by vendee claiming damages for a failure to deliver merchandise pnrehased, it was held that the measure of damages was the market value at the time stipulated for delivery, and that the rule was not altered by the payment of the price in advance.

The- same rule has been expressly recognized and adopted by tliis Court in Williams vs. Woods, Bridges &c. Co., 16 Md. Rep.. 220. There is no reason why this rule should not apply to a case like the present, and the plaintiff be confined to the damages actually suffered at the time the tort was committed.- . On tvhat ground can the plaintiff claim compensation on the basis- of the value of the stock in December, 1862? There was no tort committed at that' time by the defendant, nor did the tender, demand and refusal operate to give him a cause of action. They were merely nugatory. It is settled that if there has been a wrongful sale of the pledge, no tender of tbe debt due need be made before bringing an action therefor. Story on Bailments, see. 349.— Stearns vs. Marsh, 4 Denio, 227 . Fenn vs. Bittleson, 8 Eng. L. & E. Rep., 483. Edwards and others assignees vs. Hooper and another, 11 Mees. & Wels., 362. In tbe case last cited the plaintiff’s assignees in bankruptcy relied on a demand and refusal as tbe ground of their action, the conversion having taken place before the fiat in bankruptcy, it was held the suit could not be maintained. Parke, Baron said : “if the goods were in possession of the defendants, a demand and refusal would be evidence of a conversion. But it is not so in a case where tbe goods have been previously parted with by sale. There cannot be an effectual demand- and refusal *307 unless the party has at the time possession of the goods and lias the means of delivering them up.”

In Greenleaf's Fv., vol. 2, sec. 614, the effect of a demand and refusal is correctly stated, and many cases -cited. In Dietus vs. Fuss, 8 Md. Rep., 158 , the case in 11 Mees. & Wels., and the sections of Greenleaf on this subject were cited and approved. It follows from these authorities that the demand and refusal in this case could have no effect either in giving to the plaintiff a right of action, or to fix the measure of damages.

Treating tins case as an action of trover, we consider the rule well established, that the proper measure of damages ie the actual value of the stock at the time of the conversion, deducting of course the amount of the debt due the defendant by way of recoupment, of which we shall speak presently. This is the general rule .in actions of trover and has been long recognized in Maryland. See Hepburn's Admr. vs. Sewell, 5 H. & J., 211 . Sterling vs. Garritee, 18 Md. Rep., 469 . In Massachusetts the samo rule is established. See Kennedy vs. Whitwell, 4 Pick. 466 , and other cases cited by Sedgewick on the Measure of Damages, 504, note. In Kentucky the rule is the same, and it lias been recently .recognized by the Supreme Court of New Hampshire, in Pinkerton vs. Manchester and Lawrence Rail Road; reported in 1 Am. Law Leg., N. S., 96, where many authorities are examined and the question discussed in a. very elaborate and well considered opinion. See also the tí ote of Judge Itediield appended to that case, pages 115,116. The reported cases in New York are not uniform, and in some of them the rule has been departed from; nor is it easy lo reconcile ail the English cases where this question has arisen.

In our opinion the general rule above slated as laid down in Hepburn's Admr. vs. Sewell, and Sterling vs. Garritee, is a stable, sound and just rule, and ought to bo applied in this case, whether we consider the action as in trover for the *308 conversion, or as a special action in case. The change in the form of the declaration cannot alter the rule of damages. In Chinery vs. Viall, 5 Hurl. & Nor. 287, where the declaration contained a special count, and a count in i/rover, the rule of damages above stated was applied. Bramwell, B., said : “the principle deducible from the authorities was, that a man cannot by merely changing the form of action entitle himself to recover damages greater than the amount to which he is in law entitled, according to the true facts of the case and the real nature of the transaction.”

"We do not deny that there may be special circumstances which will take a case out of the operation of the general rule and entitle a party to recover, in imover or ease, more than the. value of the property at the time of the conversion; such was the case of Bodley vs. Reynolds, 8 Ad. & E., 779. (55 Eng. C. L. Rep.) So in Wilson vs. Little, 2 Comstock, 443, much relied on by the plaintiff’s counsel; that vras an action on the case by a pledgor against the pledgee for wrongfully selling stock pledged in security for a loan. It appeared in proof that the stock was disposed of on the 24th of December when the market price was §68 the share, when the defendant had no right to sell. The plaintiff, not being aware that the stock had been sold, offered to redeem the pledge, and at the instance of the defendant, .who promised to return it, consented to wait, and it was not till the 2nd of January that the defendant ceased to hold out the expectation of restoring the stock, or stock of the same kind and equivalent value, which the plaintiff was willing to take; at that time the stock was worth §S5 per share. It was held, under the circumstances, that the plaintiff was entitled to recover according to the value of the stock on the second of January, when the defendant finally failed in his promises to restore it. We consider that decision as manifestly just, and not in conflict with the general rule before stated. The special rule there applied can have no application to the *309 present case. Here there are no specks] facts or circumstances which, either in law or justice, entitle the pla’iiíiíf to claim more than compensation for the injury actually suffered by him at the timo the fort was committed ; and that can only be properly estimated by considering the actual market value of the stock at the time it was sold and transferred to Denison.

Ve consider it perfectly clear, that the view taken by the Court below on the question of reeoupement was correct; and that in ascertaining the damages, the amount of the debt due the defendant, to secure which, the stock and other collaterals were pledged, ought to he deducted. The law is so expressly stated by Story in his work on Bailments, secs. 315,34-9. It is supported by the authorities cited hy him, and is consistent with the general doctrine of reeoupement, established in modem cases, and recognized by this Court in Abbott vs. Gatch, 13 Md. Rep., 314. * See also, Stewart vs. Rogers, 19 Md. Rep., 117, 118 . In such a case as this, the application of this doctrine does not rest upon the principle of lien, and the cases of that description cited in argument by tbe plaintiff’s counsel are, in our opinion, inapplicable. In the recent case of Johnson, Assignee, vs. Stear, decided in the Common Ideas in England, and reported in the 3rd Am. Law Reg., (N. S.,) 753, the doctrine of reeoupement, in a case like this was considered and decided, and we fully concur in the conclusions of the Court there stated.

*310 Considering that there was error in the ruling of the Superior Court, as to the measure of damages in this case, the judgment will be reversed on the defendant’s appeal, and the plaintiff will have leave to take out a writ of procedendo.

Judgment reversed, with lerne .to take out procedendo.

Notk 3!Y Ektcrteb. — -Jn flic head notes ¡othecr.se of Stewart vs. Rogers et. al., 19 Md. Rep., 98 , the following appears to have been omitted:

The assumption that the plaintiff forfeited all claim to chai-ges for services, management, advances, &c., if 1he jury believed he sold the bark without authority, is erroneous; the plaintiff might by the course of dealing between the defendant and himself have become entitled to a balance on account against the defendant, and the latter have a claim against the former ior the value of the vessel improperly sold; the conversion or trespass of the plaint iff would not extinguish the debt of the defendant.