In re Toole

274 F. 337, 24 A.L.R. 470, 1921 U.S. App. LEXIS 1350

• Court: Court of Appeals for the Second Circuit
• Decided: March 16, 1921
• Docket: No. 66
• Status: Published

Opinions

ROGERS, Circuit Judge

(after stating the facts as above). The petitioner, Mark P. Foster, has brought this reclamation proceeding to recover possession of certain bonds which he had deposited as collateral security with his brokers, Toole, Henry & Co., the bankrupts, and which the latter in turn pledged to Eevy Bros, along with the securities of other of their customers, to secure the repayment of a loan made by Eevy Bros, to the bankrupts. It appears that Eevy Bros, after the bankruptcy sold the securities of the other customers so pledged with them, but did not sell the Foster bonds. Those bonds were returned to the receiver of the bankrupts, together with $4,236.64 in cash. The question which arises is whether under these circumstances Foster is entitled to the return of the bonds, which it is admitted the receivers now hold, and which it is also admitted that Foster has identified by specific bond numbers, or whether the owners of the other securities which Toole, Henry & Co. pledged with Levy Bros., and which the latter sold, have any equitable rights in the Foster bonds by way of contribution.

At the time the receiver took possession he found 1 of the 47 Green Bay bonds, which the petitioner is demanding, in the “box” of Toole, Henry & Co. The referee determined that Foster is certainly entitled to the reclamation of that bond. In that opinion the District Judge concurred, and the soundness of that conclusion is not questioned in this case. The order which we are asked to review and revise is that made on June 26, 1919. It directed that Foster’s petition be consolidated with the order of May 10, 1919, which referred all claims arising out of the Levy Bros, loan fund to the referee “for determination in the omnibus proceeding now pending against the Levy fund, to be determined in accordance with the rights and equities of those similarly situated as said Foster.”

The petition asserts two grounds of error:

“(1) The failure of the court’s order to direct the delivery of all 47 bonds to Foster.

“(2) Because the order directs that Foster ‘must share in the ultimate funds with the other creditors as to the remaining 40 bonds on equal terms.’ ”

As respects the second of these objections, it is to he observed that all that the order objected to provides is that the determination is to be “in accordance with the rights and equities of those similarly situated as said Foster.” So that, unless there are other creditors similarly situated, Foster cannot be prejudiced, and, if there.are other creditors similarly situated, the rights of Foster cannot be higher than theirs.

[ 1 ] In his petition Foster, the customer, alleges that on the day on which the involuntary petition in bankruptcy was filed against the broker there was a credit balance in the petitioner’s favor in excess of $20,000, on the account carried in his name on the books of the bankrupts. It appears, however, by Foster’s own testimony that the debit charge against him on the bankrupts’ book was $198,000, and that the market value of all of his securities, including the bonds now sought to be reclaimed, was at that time $230,000. As a stockbroker has a lien on the securities of his principal for the unpaid balance of any advances which the broker has made for his customer, it follows that Toole, Henry & Co. on the day prior to the bankruptcy were under no obligation to turn over the Green Bay bonds or any of the other securities to Foster, unless he had then and there tendered payment to them of his indebtedness of $198,802.79. It cannot, therefore, be said that the brokers were indebted to Foster on the day prior to their bankruptcy in the sum of $20,000, or in any other amount.

[2, 3] As Foster was a margin trader, Toole, Henry & Co., in the absence of an agreement that they would not do so, had the right to re-pledge collateral deposited with them to secure advances on margin transactions. In re Ennis, 187 Fed. 720, 109 C. C. A. 468; German Savings Bank v. Renshaw, 78 Md. 475, 28 Atl. 281; Furber v. Dane, 203 Mass. 108, 89 N. E. 227. Foster asserts that some time in 1916, and prior to the time when Toole, Henry & Co. had begun business, he had a conversation with Toole, who informed him of his plans, and, wanted him to do his business through his firm, and told him that he would carry these bonds as security on marginal transactions and that “he would always keep these bonds in the vault.” This alleged conversation was months before the firm was formed, and months prior to the delivery of the bonds by Foster to the brokers, which did not occur until June, 1917. Prior to this transfer of the bonds Foster had transacted his business through Willison & Co. He closed his account with that firm at the time these bonds were delivered to Toole, Plenry & Co., and the delivery of the bonds was made by Willison & Co., when Foster closed his account with that firm. Prior to that Foster had transacted no business with Toole, Henry & Co.

We assume that the conversation already quoted, which Foster alleges took place between himself and Toole in 1916, actually occurred. But it appears that in January, 1919, Toole, Henry & Co. mailed to Foster a card, requesting him to sign the same and return it. He admits receiving, signing, and mailing it back. The card read as follows: “Toole, Henry & Co., 120 Broadway, New York.

“Telephone, Rector 7870.

“The undersigned hereby understands and agrees that on all marginal business the right is reserved by, you to close transactions where margins are running out without further notice, and to settle contracts in accordance with the rules and customs of the New York Stock Exchange and its clearing house, or on the curb or the exchange where order was executed, and that all securities, from time to time, carried upon my marginal account or deposited to protect the same, may be loaned or pledged by you, either separately or together with other securities, either for the sum due thereon or for a greater sum all without further notice, and that all transactions are subject to the rules and customs of the New York Stock Exchange and its clearing house or the curb or other exchange where order was executed.

“Sign full name, not merely initials. Mark P. Poster.”

The parol agreement of 1916 above referred to was clearly superseded by the written authorization that all securities might be loaned or pledged by Toole, Henry & Co. Thereafter the brokers pledged the Creen Bay bonds with Bevy Bros, and did so lawfully.

This brings us to inquire as to the law applicable to such a state of facts as exist in this case. The case of In re T. A. McIntyre & Co., 181 Fed. 955, 104 C. C. A. 419, decided by this court in 1910, must be referred to in detail, as we regard, it as of controlling importance. It has been sometimes referred to as Pippey’s Case. The facts in that case as respects Pippey were as follows: The firm of T. A. McIntyre & Co. had been engaged in the general brokerage business. On April 24, 1908, an involuntary petition in bankruptcy was filed against it and receivers were appointed. Adjudication followed on May 21, 1908. On March 4, 1907, McIntyre & Co. borrowed from the Metropolitan Trust Company $200,000 and deposited as collateral therefor a large number of stocks and bonds. The day prior to the filing of the petition in bankruptcy McIntyre & Co. pledged with the Trust Company, as a substituted collateral security for the loan of $200,000, 18 shares of Pullman Company common stock owned by Pippey and standing- in his name, being certificate No. 10,277. Pippey had indorsed a transfer in blank on the certificate and delivered it to McIntyre & Co. as security for transactions thereafter to be bad between them, no authority to repledge being given. On the day after the petition in bankruptcy was filed against McIntyre & Co., Pippey demanded his stock from the receiver of that company and was informed it was in the possession of the Trust Company. On August 30th he demanded it from the Trust Company and directed them not to sell the same. Various steps were taken by Pippey to recover the stock, which are set forth in the court’s opinion, but which it is not important to repeat in this connection. It is sufficient for the present purpose to say that on April 24, 1908, the day on which the petition in bankruptcy was filed, the Trust Company applied $70,000 toward the payment of the $200,000, reducing the principal thereby to $130,000, and thereafter the Trust Company sold securities from time to time, applying the proceeds to the reduction oE the debt. On May 6th the company had liquidated its claim of $200,-000 out of the securities sold, and still held Pippey’s certificate No. 10,277 for the 18 shares of the Pullman stock, as well as a cash credit of $832.16 to the estate in bankruptcy, and certain securities. The task was to determine the rights of the various claimants to this balance of cash and various shares of stock, which by order of the court had been redeposited in the Metropolitan Trust to remain there subject to the court’s order.

The court below, after referring the matter to a master to hear and determine, ordered Pippey’s Pullman stock to be sold and the proceeds put into a fund with the proceeds of the various other securities and the cash item of $832.16 above referred to, and directed that Pippey should share with others whose stock was improperly pledged by the brokers with the Trust Company and sold by it. This was practically applying the principle of general average to the situation. As this court observed when the case came before it:

“The pledge is treated as a common adventure, the securities sold as a sacrifice for the common benelit, to which all interests are required to contribute.”

This court held that Pippey could not be thus required to contribute, and so much of the order as related to Pippey’s stock was reversed, and the cause remanded, with instructions to direct tire trustee to return his stock to him, or, if it had been sold, to turn the proceeds over to him. This court in the course of its opinion pointed out that McIntyre & Co. had no right to pledge Pippey’s stock for any of its own debts, as the stock had) been deposited with the firm merely as security against any losses from transactions on the market for Pippey’s account. When it did pledge them the day before its failure, “the firm had no transaction pending and was itself indebted to Pippey. This was a larceny of his stock.” This court said:

“By reason of the circumstances that when he left the certificate with the brokers it was duly indorsed with a transfer in blank executed by himself, he exposed himself to risk of losing his stock if the person to whom it was pledged, in good faith, for a valuable consideration, found it necessary to sell it in order to secure payment of his advances. That would be solely because Pippey would be estopped from asserting his title against the person who had parted with value on the faith of the transfer he had signed. But the pledgee has not found it necessary to sell the Pullman stock. It has repaid itself from other items of the pledged property. It no longer has any lien on such property. It can no longer avail of any doctrine of estoppel. Pip-pey’s title to his stock is absolute. He is entitled to the certificate which represents that title. The trustees, in the language of the United States Supreme Court, ‘have no better right in [it] than the bankrupt.’ Thomas v. Taggart, 209 U. S. 385, 28 Sup. Ct. 519, 52 L. Ed. 845.”

In the same case this court determined the claim of Mrs. Hudson, which differed in an important particular from that of Pippey’s. Her stock had also been pledged with McIntyre & Co., and had been by it turned over to the Trust Company, and was not sold by that company, but was among the securities turned over to the estate in bankruptcy after the company had liquidated its claim of $200,000 against McIntyre & Co. by the sale of other securities. Mrs. Hudson had not deposited her stock with McIntyre & Co. as security for transactions on her account, bút had loáned it to the firm for use in its business; it being agreed, however, that the stock was to continue her property, and was to remain on the books in her name, and that the dividends were to be paid to her. This court held that as respects this stock it was not unlawfully pledged, and as it had not been sold it was bound to contribute to the payment of the loan for which it was pledged. In other words, equity will treat alike those similarly situated. As respects Pippey no one was similarly situated, and consequently there was no obligation of contribution. As respects Mrs. Hudson there were others who, like her, had consented that their stock might be similarly hypothecated, and as to them there was the obligation of contribution resting upon her.

The case of In re J. C. Wilson, 252 Fed. 631, in the District Court for the Southern District of New York in 1917, received careful consideration at the hands of the Judge who decided it. It involved an interesting question not passed upon in the McIntyre Case. On July 30, 1914, the brokerage firm of Wilson & Co. held for one Rolph 300 shares of Mexican Petroleum stock which had been paid for in full. The brokers without authority hypothecated these shares with Harris, Winthrop & Co. There were other securities which Wilson & Co. also hypothecated without right with Harris, Winthrop. & Co. After Wilson & Co. had been adjudicated bankrupts, Harris, Winthrop & Co. sold certain of the securities which Wilson & Co. had also wrongly hypothecated, but did not sell the Rolph stock, which, as we have-said, was wrongfully hypothecated' but which survived the liquidation. Rolph claimed, relying on the decision as to Pippey’s stock in the McIntyre Case, that he was entitled to reclaim the identical 300 shares of his stock, but the court thought that the mere accident that Rolph’s 300 shares survived, liquidation did not give him equities superior to others whose stock had been unlawfully hypothecated with Winthrop & Co. by Wilson & Co. and sold by Winthrop & Co. to discharge their debt against Wilson & Co. In the course of the opinion of the District-Judge, referring to the decision as to Pippey’s stock in the McIntyre Case, it was said:

“It is true that the court held that the admiralty principle of general average was not applicable, and that the pledge should not bo treated as a common adventure; but it did not disturb the proposition that it is the character of the equity" which determines how any particular claim shall be classified. The case Is quite different from one where a pledgee rightly sells collateral prior to a bankruptcy. In the absence of fraud or collusive arrangements, the result of such a sale is one of the hazards which may befall persons in a business of this character. If, however, it be held that, after a petition in bankruptcy lias been filed, the pledgee, by selecting for sale some stocks and not others, can thereby save some stocks intact for the owners without the ¡burden of contribution, and not others, it can readily be seen that the door will be opened for the most indefensible kind of favoritism, and possibly for corrupt bargains between the owners of securities and the pledgee. Indeed, a pledgee of his own motion, without any agreement with owners of securities, could easily safeguard his friends, to the detriment of others who were strangers to him. I am fully satisfied, therefore, that liolph is in the same position as other class A claimants.”

[4] We think the conclusion above reached was correct, and that the adoption of the contrary theory would lead many times to unfair practices and work gross injustice. The courts in the United States and England have long acted upon the principle that between different creditors equality is equity. Equality, according to Bracton, constitutes equity itself. All debts are generally deemed by courts of equity to stand in pari jure and are. to be paid proportionally. In the case of stock unlawfully pledged and belonging to different owners, the equities are originally equal, and that equality is not disturbed by the fact that the stock of one is sold by the pledgee, while that of the other survives. So the principle of general average applied in maritime and commercial operations, and which required a general contribution to be made by all parties in interest towards a loss which is voluntarily incurred for the benefit of all, is indicative of the rule which should be applied in a case like this. The principle upon which contribution is founded does not rest upon contract but has its origin in natural law. Story’s Equity Jurisprudence, vol. 1, § 490.

In Johnson v. Bixby, 252 Fed. 103, 64 C. C. A. 215, 1 A. L. R. 660, the Circuit Court of Appeals for the Eighth Circuit held that, where shares of stock deposited by customers with a brokerage partnership were before bankruptcy of the partnership wrongfully pledged by it to secure its indebtedness to an innocent pledgee, and after bankruptcy the pledgee sold enough of the stock of customers A and B to pay the indebtedness, and thereafter, in addition, sold the stock of customer C. and the proceeds of that sale were traced intact into the bankrupt's assets, C was entitled to reclaim the same without contribution as to customers A and B. In the opinion the court said:

“As to contribution, the pledgee had a right to sell the Johnson and tne Schoellhorn stock and apply the proceeds, because such action was necessary to pay its debt. So far as this record shows, the other collateral sold that day belonged to the bankrupt. 'The balance of such proceeds after payment was, so far as the pledgee was concerned, due the pledgor. But as it sprang from stock wrongfully pledged, and can be traced by the owners of that stock, it may. be made subject to their superior rights. It is the only fund that can be so followed by them. This measures the maximum residue of their converted property which can be legally identified. The then unsold collateral (including the Bixby stock) was not in sequali jure with the proceeds of the prior sales. This collateral was burdened with no obligation of contribution. It was at that time freed from the pledge. No such obligation originated in the mere fact of a subsequent wrongful sale by the pledgee. No part of the proceeds of the Bixby stock was, or, under the circumstances, could properly be, applied to the debt. The entire proceeds -of that sale remain intact, and can be traced. The mere fact that such were transmitted to the trustee in a common sum or payment with the above balance does not lessen Bixby’s right therein. It does not create a right in Johnson or Schoellhorn to any part thereof.”

In the above case the customers A, B, and C apparently stood in exactly the same relation to the hypothecating bankrupt. The lender who^ held the collateral paid himself by selling out the stock of A and B. He then sold out C’s stock and paid over the proceeds to the receiver of the bankrupt. If we are right in understanding that A, B, and C stood in the same relation, and that the stock of each had been wrongfully pledged, then in holding that C was entitled, without contribution, to recover in solido the entire proceeds realized from the sale of his stock the court did not apply the principle intended to be announced in the McIntyre Case, and which was more fully set forth and applied in the case of In re Wilson. The doctrine of the Johnson Case is inconsistent with that announced in the McIntyre Case and in that of In re Wilson, which wa prefer.

[5] We think that, when customers authorize their broker to pledge their securities for the payment of the broker’s debts, each becomes to the extent of his pledge a surety for the payment of such indebtedness. As between themselves they become cosureties. All the collateral law-fully so pledged is subject to the same obligation and lien. The owners of the collateral, being in effect cosureties, must be entitled to contribution from each other for any loss sustained if the stock of one is sold to pay the debt for which the stock of the other was equally liable. This right of contribution does not arise from the contract, as already said, but rests upon principles of equity and natural justice. The principle is that where all are equally liable for the payment of a debt all are bound equally to contribute to that purpose. So that if the stock of A, B, and C is lawfully pledged for the payment of the debt of X, the stock of each is under the common burden, and if X sells the stock of A and B, and leaves unsold the stock of C, the latter must contribute to A and B the excess they have paid above their share. But if, on the other hand, the stock of A is lawfully pledged, while that of 13 and C is unlawfully pledged, there is no obligation on the part of B and C to contribute, for there is no common burden as between A, on the one side, and B and C, on the other. The principle applies only in cases where the situations of the parties are equal as equality among persons whose situations are not equal is not equitable. The situations are equal when the parties are under a common burden. Screven v. Joyner, 1 Hill, Eq. (S. C.) 252, 26 Am. Dec. 199. It is immaterial whether the parties knew of each other’s engagements or not Durbin v. Kuncy, 19 Or. 71, 23 Pac. 661.

In conclusion, it is to be observed that the order which we are asked to revise does not determine that Foster is not entitled to the return" of the entire 47 bonds which he claims. Upon the testimony which appears in this record it is impossible to say whether or not he is entitled to them. It has not been disclosed under what circumstances the securities of the other creditors were pledged by the bankrupts, whether it was done lawfully or unlawfully. The order simply contemplates that the facts shall be ascertained,-so that it may be seen whether there are other creditors similarly situated with Foster. If so, his rights cannot be superior, to theirs.

The order is affirmed.

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