James P. Kerrigan v. American Orthodontics Corporation

960 F.2d 43, 17 U.C.C. Rep. Serv. 2d (West) 212, 1992 U.S. App. LEXIS 6244, 1992 WL 67963
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 7, 1992
Docket91-1962
StatusPublished
Cited by12 cases

This text of 960 F.2d 43 (James P. Kerrigan v. American Orthodontics Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James P. Kerrigan v. American Orthodontics Corporation, 960 F.2d 43, 17 U.C.C. Rep. Serv. 2d (West) 212, 1992 U.S. App. LEXIS 6244, 1992 WL 67963 (7th Cir. 1992).

Opinions

EASTERBROOK, Circuit Judge.

David A. Hoffman purchased some shares in American Orthodontics Corporation. In 1971 he sold 50 of these shares to James P. Kerrigan, a fellow dentist. Hoffman retained the certificates as Kerrigan’s (undisclosed) agent and remained the registered owner on the books of Orthodontics. The record does not reveal why Hoffman did not transfer the shares to Kerrigan. Counsel suggested at oral argument that such an arrangement was common, designed to make it appear that Orthodontics had fewer investors than the 15 that would have triggered reporting and perhaps registration requirements under Wisconsin law. Kerrigan came to regret letting Hoffman keep the shares, for Hoffman redeemed the stock in 1986, receiving $112,-500. Kerrigan has a worthless judgment [45]*45against Hoffman, who filed a petition in bankruptcy. Kerrigan sought, but did not obtain, a judgment against the solvent Orthodontics.

Since being filed, this case under the diversity jurisdiction has become progressively simpler. Originally it included a claim by Patricia Kerrigan, James’s spouse, to the proceeds of a second 50 shares; a jury determined that Patricia had not paid for, and thus did not own, these shares. She has dropped out of the case. James Kerrigan prevailed against Hoffman, but this unsatisfied judgment will not detain us. A jury concluded that Orthodontics acted with due care in paying Hoffman, and that at all events Kerrigan could not recover in tort because he was negligent in allowing Hoffman to hang onto the certificates. Kerrigan has not appealed from the judgment entered on the jury’s verdict. All that remain for decision are theories the district judge deleted before trial: that Orthodontics converted his investment by paying Hoffman, and that the firm is liable because it did not undertake the reasonable pre-transfer inquiry that § 8-403 of the Uniform Commercial Code (adopted in Wisconsin as Wis.Stat. § 408.403) prescribes when an issuer is aware of an adverse claim to the stock. Orthodontics was aware of such a claim. In 1985 Kerrigan sent Hoffman a letter revoking his agency and demanding that he transfer the shares to Kerrigan’s name; he sent a copy of this letter to Orthodontics. Kerrigan also invoked § 5 of the Uniform Act for Simplification of Fiduciary Security Transfers, adopted in Wisconsin as Wis.Stat. § 112.-06(5). Neither § 8-403 nor § 5 purports to create a right of action to collect damages, however, so all turns on Kerrigan’s assertion that redemption of securities on demand of a faithless agent is conversion by the issuer.

Orthodontics contends that the jury’s verdict necessarily defeats Kerrigan’s remaining claims. This would be so only if contributory negligence were a defense to conversion. Orthodontics has not drawn our attention to a decision so holding, and this omission is not an oversight. Many cases hold that contributory negligence is not a defense. E.g., Row v. Home Savings Bank, 306 Mass. 522, 29 N.E.2d 552 (1940); Lund’s, Inc. v. Chemical Bank, 870 F.2d 840, 850 (2d Cir.1989) (discussing how the UCC changed the common law). Conversion grew out of trover, and the paradigm was a finder keeping lost goods. Prosser & Keeton on the Law of Torts § 15 (5th ed. 1984). Negligence could not be a defense without abolishing the tort, for in most cases the owner’s loss of the property could be called negligent. Conversion is an intentional tort, id. at 92-93; Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 770 F.2d 98, 101 (7th Cir.1985), and as a rule the victim’s contributory negligence is no defense to intentional torts, Restatement (2d) of Torts § 481 (1965). Perhaps this is why the Uniform Commercial Code contains a special rule absolving agents and bailees of liability for conversion when they act in good faith (that is, with honesty in fact, UCC § 1-201(19)) and observe “reasonable commercial standards”, UCC § 8-318. See also Restatement § 244; UCC § 3-406.

Is wrongful redemption of stock conversion? Surprisingly, Kerrigan does not cite a case in any jurisdiction holding that it is. We found only one: • Shidler v. All American Life & Financial Corp., 775 F.2d 917, 925-26 (8th Cir.1985), says that Iowa would treat wrongful redemption as conversion. Heré lies something of a conceptual problem. Conversion is unprivileged interference with the owner’s possession and enjoyment of a chattel. A corporation accordingly may convert stock by refusing to register a transfer to the owner; refusal to record the change prevents the buyer from having the benefits of ownership. Restatement § 242 comment e; Prosser & Keeton at 91 & n. 30 (collecting cases). Redemption and cancellation of the stock is at least potentially different. Stock represents a claim against corporate assets. By redeeming stock, a corporation does not acquire an ownership interest in itself. Rather, the remaining investors acquire larger proportionate stakes in a smaller pie. The transaction is a wash for both the other investors and the firm (as an [46]*46aggregate of all investors). Granted, the buyer from a thief converts the asset even though the purchase leaves the buyer no better off. Restatement § 229 comment e. But in such cases the asset continues to exist. Stock is valuable not for the paper on which shares are printed (these days much stock is not represented by certificates and so has no physical existence) but for the interest in the issuer it represents. When this interest- vanishes, the person surrendering the stock looks most like the converter.

All of this is no more than an interesting detour, however. Hoffman was the registered owner of the Orthodontics stock. The Uniform Commercial Code overrides the common law and authorizes corporations to treat the registered owners of stock as the rightful owners. Section 8-207(1) provides:

Prior to due presentment for registration of transfer of a certificated security in registered form, the issuer or .indenture trustee may treat the registered owner as the person exclusively entitled to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.

One of the “rights and powers of an owner” of Orthodontics’ stock was to surrender the shares for redemption. This Hoffman did, and § 8 — 207(1) allowed Orthodontics to honor that request without fear of liability. The real owner may terminate the corporation’s privilege by making “due presentment for registration of transfer”, but Ker-rigan never asked Orthodontics to put the stock in his name. After sending Orthodontics a copy of the letter revoking Hoffman’s agency, Kerrigan never asked Orthodontics to do anything. That will not serve: “Mere notice is not enough under this section to impose upon the issuer the duty of dealing with” the person claiming an interest adverse to the registered owner (§ 8-207 official comment 2).

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Bluebook (online)
960 F.2d 43, 17 U.C.C. Rep. Serv. 2d (West) 212, 1992 U.S. App. LEXIS 6244, 1992 WL 67963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-p-kerrigan-v-american-orthodontics-corporation-ca7-1992.