Crane v. Onderdonk , 67 Barb. 47 ( 1873 )

By the Court, Brady, J.

The plaintiff in this action was not entitled to the stock held by Van Dyke, until the amount for which he held it as collateral was paid. Onderdonk, to whom Van Dyke sent it for delivery to the person paying the lien upon it, converted it to his own use before any payment was made, advising Van Dyke that he had thus taken it, and remitting payment of the debt due the latter. Onderdonk, having received the stock for the purpose of transferring it to such person as Stout designated, transcended the power conferred upon him, and was guilty of misfeasance towards the owner of, or person entitled to,' its possession. Although an agent, for nonfeasance and omissions of duty, is not liable, except to his principals, the rule is otherwise when the act complained of is misfeasance. In all such cases he is personally responsible, whether he did the wrong intentionally, or ignorantly by the authority of his principal; for the principal could not confer on him any authority to commit a tort upon the rights or property of another. (Story on Agency, § 311, and cases cited. Hecker v. De Groot, 15 How. Pr. Rep., 314. Gutchess v. Whiting, 46 Barb. R., 139.) The question presented, and upon which the success of the appellant here depends, is, therefore, whether the plaintiff acquired, by his agreement with Stout and subsequent arrangement relative thereto with Van Dyke, any title or interest in or to the stock which enables him to maintain this action. It appears that he had, at the solicitation of Stout, agreed to furnish the money necessary to discharge Van Dyke’s debt, and had made the necessary arrangements for the advance of the money to him by Van Wickle and Stout, and by depositing with them securities for their protection. This was a sufficient consideration for.the agreement between Mm and Stout. (Story on Contracts, § 431, and eases cited—although the consideration was not disputed between them.) And the agreement thus made was ratified by the employment of Stout as his agent to obtain the transfer of the stock, which the latter proceeded to do. Stout never questioned the right of the plaintiff to the transfer. On the contrary he was desirous that it should be made, and the fund to accomplish it, and for which the plaintiff had provided, was awaiting an adjustment of the sum due from Stout to Van Dyke. All this was well known to the defendant Onderdonk, with whom, as the representative of Van Dyke, the negotiations were carried on. It also appears that an amount sufficient for the purpose was tendered by the plaintiff to Onderdonk and the stock demanded, but the money was not received, and the stock was not transferred or delivered. It is true that tMs incident was subsequent to the appropriation of the stock by Onderdonk; but it was, with the exception of forty shares, in his possession, and the latter doubtless under his control. The result of these facts and conclusions is that the plaintiff was the assignee of the right of redemption, and ready to comply with the duties which devolved upon Mm in virtue thereof, which the pledgor assisted him in discharging. He was therefore, pro Tiac vice, the owner. He possessed all the rights of Stout, and was endeavoring to enforce them. The defendant Onderdonk was not in a position either to dispute or to interfere with them. He could not take advantage of any assumed defect in the plaintiff’s title or interest, in the face of the fact that the actual owner and the latter were acting in concert and for a lawful purpose. The right of Stout to remove the stock, to change its custody on the payment of the lien upon it, was unquestionable, and the attempt to interfere with the exercise of such a right would be wholly unwarranted. The equitable interest in a judgment may be assigned by a delivery of the execution. (Dunn v. Snell, 15 Mass., 481.) The equitable interest in a chose in action may be assigned, for a valuable consideration; and it is not necessary that the assignment should be in writing. (Parsons on Cont., vol. 1, p. 197, and cases died.) And if the person seeking to enforce a demand have the legal or equitable title, if he have the whole interest, he may maintain an action. (Hastings v. McKinley, 1 E. D. Smith, 277.) The assignment was accompanied by a delivery to the plaintiff of the evidence of the contract between Van Dyke and the assignor, so far as it could be. The correspondence between Van Dyke and Stout furnished the proof of the possession of the stock by the former as collateral, and his assent to the transfer in accordance with the arrangement made by the latter; and this was equivalent to the delivery of an execution or contract.

[First Department, General Term at New York, November, 1873.

The conclusion which must follow these views is, that the dismissal of the complaint was erroneous. The defendant Onderdonk was a wrongdoer, and was not, under the circumstances, in a position, as already suggested, to question the plaintiff’s right. He had acted in contravention of his trust to Van Dyke and his quasi trust to Stout and to the plaintiff, whose interests he knew and disregarded.

I think the judgment should be reversed.

Judgment reversed.

Ingraham and Brady, Justices.]