Guinzburg v. H. W. Downs Co.

43 N.E. 195, 165 Mass. 467, 1896 Mass. LEXIS 297

• Court: Massachusetts Supreme Judicial Court
• Decided: March 10, 1896
• Status: Published

Opinion

Allen, J.

A pledgee, on default in the payment of his debt, may sell the pledged property at public auction, giving to the pledgor notice of the time and place of sale. Washburn v. Pond, 2 Allen, 474. Union Cattle Co. v. International Trust Co. 149 Mass. 492, 501. But in making such sale he is bound to exercise reasonable skill and diligence in order to get the value of the property. Newsome v. Davis, 133 Mass. 343. Clark v. Simmons, 150 Mass. 357. This includes the fixing of a reasonable time and place of sale. Markham v. Jaudon, 41 N. Y. 235, 243. The facts reported in the present case are somewhat meagre ; for instance, we do not know what public notice was given of the sale, nor whether the price obtained was much, if any, below the value of the shares. We are much inclined to think the place of sale was an unreasonable one. The pledged property consisted of over one third of the whole number of shares in a small Massachusetts corporation, whose whole capital stock was only $16,000. None of the stock had ever been sold at auction in New York, and it was not listed. It did not appear that it was known in New York. The note for which the stock was pledged was made and delivered in Massachusetts, and was payable here, and the pledge was made "here. The pledgee was a Néw York corporation. Under these circumstances, it would have been better to make the sale in Massachusetts.

But it appears that the Downs Company, which was the pledgor, and its officers, whose names were also on the note, all received notice of the proposed sale on July 20, 1894, and the sale was fixed for July 24; and the pledgor and its officers, after the receipt of the notice, did not communicate with the pledgee, or take any action in regard to the said notice or the proposed sale. Since all the parties whose names were on the note had notice for this length of time, and omitted to make any protest or objection to the place or time of sale, and took no action whatever in regard to the notice or proposed sale, we think this omission and silence amounted to a waiver of objection on this score, and that they cannot now be heard to complain that the place was unreasonable. See Metcalf v. Williams, 144 Mass. 452, 455.

The fact that there was only one bidder does not render the sale invalid. Learned v. Geer, 139 Mass. 31.

On the facts .reported, the sale was valid, and the plaintiff is entitled to a decree in his favor.

Decree for the plaintiff.