Baker v. Wasson , 53 Tex. 150 ( 1880 )

Bonner, Associate Justice.

This suit differs from that of Strange v. H. & T. C. Railway Co., infra, in this, that the last named case was brought against the company for wrongfully issuing new stock to which the plaintiff claimed that he was entitled; the present suit is against appellant William Iv. Baker and Thomas M. Shirley for having, as it is alleged, improperly obtained a transfer to a certificate of stock claimed by appellee Wasson, and for having procured new stock therefor in the name of Baker.

Wasson sues for title to the new stock, or for its value as damages. Subsequently the H. & T. C. R’y Co. was made a party defendant.

Judgment below was rendered for Wasson for $4,000 and interest, as damages for value of the stock, against defendants Baker and Shirley; and under the charge of the court, that from the evidence there was no connection between the defendant company and the other defendants, judgment was rendered for the company.

Baker alone appeals, and rests his case upon the propositions: First, that the facts show that the stock of the company had not been converted by him; second, that the court erred in sustaining the exceptions to his answer setting up that he was only the medium through which the money of Hoses Taylor was paid for the stock through his agent Shirley.

I. The liability of Baker, if any, under the evidence, must be for alleged participation in the act of procuring the transfer of the original stock to have been taken in his own name and the issuance of new stock thereon, and not for any subsequent disposition he may have made of this new stock Bayard v. Bank, 52 Pa. St., 235.

Shares in incorporated companies, though not visible or tangible and capable of actual, manual delivery, have, nevertheless, long been recognized as having value and many. other characteristics of property. Fisher v. Essex Bank, 5 Mass., 377.

Railroad shares, by our statute now in force, are denominated personal property, and are subject to levy and execution and sale under process of garnishment. R. S., arts. 208, 209, 210, 2297, 4138.

The company only, had the power to cancel the old stock and issue new, and if this was done illegally and wrongfully, whether through negligence or fraud, Wasson, if the true owner of the old stock, had his remedy by suit against it. Bayard v. Bank, 52 Pa. St., 234; Salisbury Mills v. Townsend, 109 Mass., 121; Strange v. Railway Co., infra.

This liability rests, perhaps, rather upon the ground of breach of contract upon the part of the company, of its undertaking to hold the stock for the benefit of the true owner of the certificate, than upon that of a technical tort.

In case of fraudulent combination between the company and Baker, by which the new stock was wrongfully issued to him, so as to defeat the just rights of Wasson, under circumstances which would make the company liable, Wasson would have his remedy against both for damages. Bayard v. Bank, 52 Pa. St., 234.

Baker would not be thus liable, however, if he did not have notice, or was not in law charged with notice, of the invalidity, if any, of his own title. Pratt v. Taunton Mills, 123 Mass., 112; Bayard v. Bank, 52 Pa. St., 234.

The non-production of the original certificate of stock was not of itself necessarily fatal to the title of Baker, and if he was a bona fide purchaser, his title was good to the new stock issued to him. In this event, Wasson’s remedy, if any, would be against the company, if they issued the new stock without due regard to the merits of his title. R. R. Co.v. Schuyler, 34 N. Y., 80.

That portion of the charge of the court by which the liability of Baker was made to depend upon the question, whether he or Wasson had the older title, without regard to the good faith otherwise of the title to Baker, was calculated to mislead the jury, and was erroneous.

II. If Baker aided in the illegal procurement of the new stock to himself, under circumstances which would make him, if acting in his own right, responsible to Wasson, the alleged fact that he was acting therein as the agent for Moses Taylor, would not relieve him from liability.

This rests upon the principle that the master cannot confer upon the servant authority to commit a tort upon the right or property of another. Story on Agency, § 311; Lee v. Mathews, 10 Ala., 682; Hoffman v. Carow, 22 Wend., 318; Spraights v. Hawley, 39 N. Y., 446; Higginson v. York, 5 Mass., 340; Arthur v. Balch, 23 N. H., 160.

In the case of Loring v. Mulcahy, 3 Allen, 575, cited by counsel for appellant, the party sought to be charged was a mere depositary or naked bailee of the goods without any participation in the act of conversion.

Reversed and remanded.

[Opinion delivered March 23, 1880.]