Appeal of Jeanes

11 A. 862, 116 Pa. 573, 1887 Pa. LEXIS 426

Opinion

Opinion,

Mr. Justice Green :

It is much to be regretted that no opinion was filed by the learned court below with a statement of their reasons for reversing tbe report of tbe master, upon tbe vital, fundamental question in this case. A decree for almost a hundred thousand dollars has been entered against a citizen without a; solitary reason for the rendition of such a decree appearing upon the record, while very substantial reasons appear there, in the master’s report, showing why no decree should'be made against him for any amount. The magnitude of the judgment alone was sufficient to impel any court to justify its action by a most careful and well-considered opinion. In addition to that, tne orderly course ot procedure in this class of cases, especially where a master’s report is reversed, requires that an opinion of the court be filed explaining the reasoning and principles upon which its conclusions were founded, so that we might be fully informed upon that subject. We have several times called attention to this matter and in a few instances have refused to hear causes brought up on appeals from pro forma decrees without opinions, although they were confirmations of the master’s reports. In this particular case the situation is especially anomalous because there are five other appeals from the same court, from decrees made upon the reports of the same master, upon substantially the same facts, and in all of them the final and controlling question being the very same as in this; and yet, while the master’s report dismissed the plaintiff’s bill in all six of the cases, the court’s decree sustains the report in five of the cases and reverses it in one. In the five cases, as in this, there is no opinion of the court and we thus have the unpleasant spectacle of conflicting decrees made by the same court upon the same question and without any reason assigned for any of them. If we were in doubt about the determination of these causes we would refer them back in order that opinions might be filed giving us some information as to the occasion of the seeming conflict of decision which we have indicated. But we have no doubt as to how they ought to be decided, and will therefore dispose of them finally.

In the view that we take of the present case there is but one question which requires consideration and that is, whether the pledgees of the stock had the lawful right to sell it at •private sale and without notice to the pledgor ? In an ordi nary case of pledge of course there is no such right. The pledgee must first give notice to redeem and if the pledge is not redeemed and he proposes to sell it, he must sell it at public sale and after notice to the pledgor. If this be not done the pledgor’s rights are unaffected by the sale. But this is not an ordinary case of pledge. It is affected by a special contract. The pledgees made loans of money to the pledgor upon pledges of certain passenger railroad stock, and the notes given by the pledgor for the loans expressed the terms of the contract of pledge as well as of the loan. They were all alike and in the following words:

Philadelphia, 1887.

Two months after date I promise to pay to the order of myself $ without defalcation, for value received, having deposited herewith shares of West Philadelphia Passenger Railway Company stock which I authorize the holder of this note, upon the non-performance of this promise at maturity, to sell either at the Broker’s Board or at public or private sale without demanding payment of this note or the debt due thereon and without further notice, and apply the proceeds, or as much thereof as may be necessary, to the payment of this note and all necessary expenses and charges, holding me responsible for any deficiency.

William T. Elbebt.

It is not for one moment pretended that there is anything illegal about this contract, and therefore it needs no discussion except an exposition of its terms, an application of them to the subsequent facts which are quite undisputed so far as they are material, and a brief consideration of the rights and duties of the parties respectively. The extreme plainness and simplicity of the language of the instrument, make it manifest at once, that the pledgee of the stock delivered with the note, had the undoubted right, immediately upon the dishonor of the note, to sell it, at either public or private sale, without notice to redeem and without notice of the sale. The subsequent facts were, that all the notes were dishonored, amounting to over a hundred thousand dollars, for which eleven hundred and sixty shares of stock had been pledged. This oc eurred in August and September 1877. The plaintiff Elbert, who was the pledgor, failed to pay a single dollar of his indebtedness to the defendants, who were the pledgees and who with a good faith which has not been questioned for an instant, advanced the whole of this very large sum of money upon the credit of the collaterals. Shortly after the last loan was made it was discovered, and the fact became public, that some of the officers of the company whose stock had been pledged, had made large over-issues of stock fraudulently and without right, and it was developed on the hearing of this case that 500 of these pledged shares were of this spurious and illegal issue. The market price of the stock at once depreciated very greatly, so that the aggregate of the stock pledged was entirely insufficient to repay the pledgees for the amount of their loans; and, as Elbert was a hopeless insolvent, from whom not a dollar could be or ever was collected, the defendants were left with a large quantity of comparatively worthless collateral on their hands, and were obliged to confront, as they did, an enormous loss upon their transactions with the plaintiff. They did not however exercise their right to sell the collateral but held it for several years. In the meantime, upon proper proceedings against the corporation whose stock had been fraudulently issued, it was held to be responsible for the acts of its officers; and, as a consequence, five hundred new and legitimate shares were issued to the defendants in place of the same number of spurious shares which the plaintiff had pledged to them. The defendants surrendered the spurious shares which they had received from the plaintiff, and accepted in their place the same number of genuine shares from the company. They thus held 1160 genuine shares, instead of 660 genuine and 500 false which they had received from the plaintiff. In adopting this course they very greatly benefited the condition of the plaintiff as events later on fully proved. In 1880 the stock of the Railway Co. rose in value after a long period of depression. The defendant’s firm had become dissolved in October 1877 by the death of William J. Morris, one of its members, and the immense debt due them by Elbert was carried by the liquidating partners, who also carried, the collateral until the closing up of tbe business of the firm in 1880. When this was done the stock was alloted among the different partners in proportion to their interests in the firm. Subsequently from August 1880 to May 1881 the various members of the firm sold, at private sale, their several allotments of the stock, and while they realized the full market price of the stock at the time of sale it was altogether insufficient to pay off the debt due them, and a very heavy loss resulted to them upon closing out the transaction. These sales were made without notice to Elbert and without any special notice to redeem. They were known by Elbert at least as early as April, 1882; but the master finds that in his opinion the statement of Mr. Jeanes that he informed Elbert of the sales immediately after they were made, was true. It is a matter of very little moment except as it affects the question of the plaintiff’s good faith in bringing this action. In the letter he wrote to Mr. Jeanes in April, 1882, he stated that he assumed the matter as settled in full and advised them accordingly.

The question then recurs had the defendants the legal right to sell the shares without notice and thereby divest Elbert’s interest in them ? It is difficult to understand how there can be any question upon this subject, since the right to sell without notice is expressly given by the contract of pledge. A very slight reference to the authorities shows that the right is well recognized and constantly enforced. Thus it is said in Jones on Pledges § 611: “ A waiver of the requirement of notice of the pledgee’s intention to sell, and the time and place of sale, may be made by agreement of parties. A waiver of the common law rule of notice is generally made when the parties agree upon a special power of sale, for under such a power it is usual either to waive notice of sale altogether or else to provide for a special notice. Such notice is waived by giving the pledgee the option to sell at private sale. Under authority given a pledgee to sell at public or private sale at his option he may sell without notice in the usual manner of selling such property in the market.”

Loomis v. Starr, 72 Ill. 623: Where a party deposited certain township bonds as collateral security for the repayment of certain sums of money borrowed, it was held that the lender with whom thejr were deposited had the right to sell the same in default of payment without any personal notice to the pledgor of an intention to do so, it being so stipulated in the agreement. Other authorities to the same effect are Robinson v. Hurley, 11 Iowa 410; Milliken v. Dehon, 27 N. Y. 364; Hamilton v. State Bank, 22 Iowa 306.

It is argued for the plaintiff that as the spurious shares were delivered to the railway company by the defendants and genuine shares were delivered to the defendants in their place, the identity of the pledge was destroyed and the shares sold were not the same as the shares pledged and were therefore not covered by the power of sale. It is a most ungracious argument, but as it is altogether untenable it cannot prevail. The shares pledged were 1160 shares of the West Philadelphia Passenger Railway Company, and the shares sold were also 1160 shares of the same company. Their identity was therefore absolute as to their number and as to the particular corporate stock of which they were a part. But 500 of those pledged were false, fraudulent and spurious shares which neither Morton, from whom Elbert received them, nor Elbert, who made no advances upon them, could ever have asserted against the company which was defrauded by their issue. Only the fact that the defendants had loaned money upon them gave them a right to have genuine shares issued in their place and that fact enures to the benefit of the plaintiff by no merit of his. When he pledged the original 1160 shares for value which he received, he thereby gave an implied warranty that they were actual, legal, genuine shares of this particular company, and it was that hind of shares that he empowered the defendants to sell. All the parties bargained upon the faith of the shares being genuine, and the plaintiff, above all others, is bound by that quality of the shares. But he was guilty of a breach of this warranty, whether innocently or not is quite immaterial. Legally he was bound to make those shares good. It has been done for him, by the act and the merit of the defendants, and they held after they received the genuine shares exactly what he agreed to give them and no more. As a matter of course as between him and them he never would be permitted to allege his own want of title to the property which he had delivered to them upon ample consideration paid by them to him. A fortiori he cannot be heard to aver their want of title to the identical thing he assumed to deliver them, because they had simply assented to a change in the certificates necessary to perfect the plaintiff’s title as well as their own. He is estopped from making any such averment. It would be a monstrous wrong to permit such an iniquity to be perpetrated. To say of this plaintiff that he was denied the rights of an innocent stockholder because he could not prevent the company from issuing the genuine stock in place of the false, is to ignore, first, the fact that he never was an innocent stockholder, and secondly that the issue of the new stock was done by the decree of a court to which his assent was in no manner essential. Even if the company had voluntarily increased their capital stock while the defendants held the pledge, that circumstance could not possibly affect the determination of such a question as this, although it might be true that the aliquot proportion which the genuine shares originally pledged bore to the' 'total capital stock, was greater before than after the new issue. It has nothing to do with this question.

It is also argued that the sale of the stock pledged was not the single act of the firm in its collective capacity, and was therefore not an execution of the power. In point of fact thé sales were all made by individual members of the firm, but as all assented and none of them are here complaining, so far as the plaintiff is concerned the sales must be regarded as the act of all. The defendants were not bound to sell all the shares at one time or through any particular member of the firm, and the details of the sales are not of his concern unless some right of his was violated. The defendants, by their long holding of the shares through the time of their great depression, conferred a most signal benefit upon the plaintiff by obtaining a much higher price for them than was possible at an earlier date. Had the price then receded this proceeding would never.have been heard of. It happened to advance far beyond the wildest calculations. Of this advance the plaintiff now seeks to take advantage at the ruinous cost of the defendants, although he never tendered a dollar of his indebtedness or made the slightest attempt or offer to redeem the pledge. If by the law he were entitled to this advantage, of course he would obtain' it no matter how great the hardships; but as it is, neither the rules of law nor the principles of equity can give him the decree he seeks, and he must therefore be content without.

The decree of the court below is reversed, and the plaintiff’s bill is dismissed; and it is ordered that the costs be paid as recommended by the master, to wit, the costs in the original action and of this appeal be paid by the plaintiff, Elbert, and the costs in the cross-action, by the West Philadelphia Passenger Railway Company; the master’s fee to be paid three fourths by Elbert, and one fourth b}7 the railway company.