Opinion by
Mb,. Justice Thompson,
The appellee was clearly entitled to recover and the main question in controversy turned upon the measure of damages in such recovery. The appellee purchased through appellants, as brokers, three hundred shares of the preferred stock of the American Tobacco Company for the sum of $18,000, and from time to time deposited with them sums of money amounting to $5,600 for the purpose of protecting them in a loan required to pay the amount of such stock so purchased. Having done so they held this stock as a pledge to secure the loan which represented an amount equal to the balance of the money, which had been required to make the purchase. On December 15, 1899, Friday, the appellee was at the banking office of the appellants and paid on account of such loan the sum of $3,000, although the sum of $1,000 was stated to be then necessary to protect appellants in consequence of the decline in the [607]*607price of the stock. This sum was a part of the $5,600. On this occasion appellee testified that he had more money with him to put up if he had been asked to do so by the appellants. On Monday following appellee was at appellants’ office until a few minutes after two o’clock, when he left for his place of business. Up to the time he left a change of a few points in the price of the stock in question had taken place, and appellants said nothing to appellee about requiring additional money to protect the loan and at this time the loan was sufficiently protected. Some time after two o’clock on that day and without any authority from or notice to appellee, appellants sold his stock. Upon receiving notice of such sale the following morning appellee went to appellant’s office and stated that they had no authority to sell his stock and that he intended to hold the same and had been and was always ready to protect them against any loss in the event of a decline in its price. He testifies: “ I told him (one of appellants) that was an unjust way to deal with me. I said I was prepared as I told you in the presence of your brother on BTidáy that I was going to hold this tobacco and for this reason I put up the last $3,000 instead of $1,000.”
After the purchase of this stock the relation as to it between appellee and appellants was that of pledgor and pledgee. It was a violation, of appellants’ duty as pledgee to sell the stock without notice to or authority from appellee, the pledgor, and was a wrongful conversion of it. It is unnecessary to discuss the causes which induced the appellants to make the sale in question. It is sufficient to say that in making the sale without notice to or any authority from the appellee, they were guilty of a violation of the trust imposed upon them as pledgee and their action was wrongful. B'or such wrongful conversion, < the measure of damages, which the appellee was entitled to recover, was the highest price of the stock between the date of the conversion and that of the trial. The sale made by them with the notice and statement sent by them was a wrongful conversion and a distinctive refusal to deliver the stock from that day up to the trial and for such conversion therefore the measure of damages was the highest price of the stock in the market up to the date of such trial. While it is true that in the case of conversion of ordinary chattels, the measure of [608]*608damages is the value at the time of the conversion, yet in view of the shifting character of the prices of stock in our stock exchanges, such rule would be manifestly inadequate. It has therefore been held that stocks are an exception to the rule in question and the highest price in the market is consequently made the measure of damages.
The foundation of this rule rests upon the changing character of the value of such property as evidenced by the varying quotations in the different stock markets and sometimes the advances in valuation are made with astonishing rapidity. Political action or material or financial combinations often are the occasion of such exceptional advances. The very nature of such property with its constantly changing valuations indicates the necessity of a measure of damages shifting in character, and hence it has been made to differ from that in the case of ordinary chattels where it is based upon their valuation at the time of the conversion, because such value is not so changeable. Such difference is clearly marked in the- leading case of Montgomery County Bank v. Reese, 26 Pa. 143, where Chief Justice Lewis says: “ If a bank or any other trustee might deprive the cestui que trust of his stock, without answering for the rise in the value, the beneficial owner would be deprived of the very advantage which he had in view when he made the investment. It is plain therefore, that the ordinary measure of damages, for the conversion or refusal to deliver chattels of determinate value and unlimited production, will not reach the justice of the case when applied to bank stock.” Again he says : “ It is a settled principle in the court of chancery that where a trustee sells stock contrary to his trust the cestui que trust is entitled to his election, to have the stock replaced or the produce of it with the highest interest: Hart v. Ten Eyck, 2 Johns. Ch. 62, 117; Forrest v. Elwes, 4 Ves. 492; Pocock v. Reddington, 5 Ves. 794. If the cestui que trust has an election in equity to have the stock replaced, why shall he not have its value in an action at law where he cannot have the stock itself. If the chancellor would compel the trustee to go into the market and purchase stock to replace what he had improperly sold, although it had risen in value in the meantime, is not that done upon the principle that he is liable for the increased value ? And when a court of law compels him to [609]*609pay that increased value, it does nothing more than prescribe the same rule of justice which a court of equity enforces in another form.”
In Neiler v. Kelley, 69 Pa. 403, it is said by Mr. Justice Shabswood : “ The general rule as to the measure of damages in an action of trover, undoubtedly is well settled to be the value of the goods at the time of the conversion, to which may be added interest up to the time of the trial, unless there were some circumstances of outrage in the ease, when the jury may give more : Jacoby v. Laussatt, 6 S. & R. 300; Dennis v. Barber, 6 S. & R. 420; Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts, 333; Harger v. McMains, 4 Watts, 418. This rule may be considered to have been, to some extent, modified as to stocks, railroad bonds and other securities of a similar nature, by the cases of The Bank of Montgomery v. Reese, 26 Pa. 143; Reitenbaugh v. Ludwick, 31 Pa. 131; Persch v. Quiggle, 57 Pa. 247, and perhaps others.”
In Coningham’s Appeal, 57 Pa. 474, it is said by the same judge : “ The stocks were still a mere pledge; their dividends! and accretions belonged to the pledgor. After the unauthor-.', ized sale of them to third persons, they are also in equity chargeable with what would have been received had they retained them, as they ought to have done until the equity of redemption in the complainant was foreclosed by a sale after notice in the manner prescribed by law. It follows that they must account to the plaintiff and the appellant for the value of the stock at the highest rate which it has at any time since attained in the market.”
It is contended however by the appellants that such measure of damages cannot be applied in the present case because no specified time was fixed for the delivery of the stock wrongfully converted.
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Opinion by
Mb,. Justice Thompson,
The appellee was clearly entitled to recover and the main question in controversy turned upon the measure of damages in such recovery. The appellee purchased through appellants, as brokers, three hundred shares of the preferred stock of the American Tobacco Company for the sum of $18,000, and from time to time deposited with them sums of money amounting to $5,600 for the purpose of protecting them in a loan required to pay the amount of such stock so purchased. Having done so they held this stock as a pledge to secure the loan which represented an amount equal to the balance of the money, which had been required to make the purchase. On December 15, 1899, Friday, the appellee was at the banking office of the appellants and paid on account of such loan the sum of $3,000, although the sum of $1,000 was stated to be then necessary to protect appellants in consequence of the decline in the [607]*607price of the stock. This sum was a part of the $5,600. On this occasion appellee testified that he had more money with him to put up if he had been asked to do so by the appellants. On Monday following appellee was at appellants’ office until a few minutes after two o’clock, when he left for his place of business. Up to the time he left a change of a few points in the price of the stock in question had taken place, and appellants said nothing to appellee about requiring additional money to protect the loan and at this time the loan was sufficiently protected. Some time after two o’clock on that day and without any authority from or notice to appellee, appellants sold his stock. Upon receiving notice of such sale the following morning appellee went to appellant’s office and stated that they had no authority to sell his stock and that he intended to hold the same and had been and was always ready to protect them against any loss in the event of a decline in its price. He testifies: “ I told him (one of appellants) that was an unjust way to deal with me. I said I was prepared as I told you in the presence of your brother on BTidáy that I was going to hold this tobacco and for this reason I put up the last $3,000 instead of $1,000.”
After the purchase of this stock the relation as to it between appellee and appellants was that of pledgor and pledgee. It was a violation, of appellants’ duty as pledgee to sell the stock without notice to or authority from appellee, the pledgor, and was a wrongful conversion of it. It is unnecessary to discuss the causes which induced the appellants to make the sale in question. It is sufficient to say that in making the sale without notice to or any authority from the appellee, they were guilty of a violation of the trust imposed upon them as pledgee and their action was wrongful. B'or such wrongful conversion, < the measure of damages, which the appellee was entitled to recover, was the highest price of the stock between the date of the conversion and that of the trial. The sale made by them with the notice and statement sent by them was a wrongful conversion and a distinctive refusal to deliver the stock from that day up to the trial and for such conversion therefore the measure of damages was the highest price of the stock in the market up to the date of such trial. While it is true that in the case of conversion of ordinary chattels, the measure of [608]*608damages is the value at the time of the conversion, yet in view of the shifting character of the prices of stock in our stock exchanges, such rule would be manifestly inadequate. It has therefore been held that stocks are an exception to the rule in question and the highest price in the market is consequently made the measure of damages.
The foundation of this rule rests upon the changing character of the value of such property as evidenced by the varying quotations in the different stock markets and sometimes the advances in valuation are made with astonishing rapidity. Political action or material or financial combinations often are the occasion of such exceptional advances. The very nature of such property with its constantly changing valuations indicates the necessity of a measure of damages shifting in character, and hence it has been made to differ from that in the case of ordinary chattels where it is based upon their valuation at the time of the conversion, because such value is not so changeable. Such difference is clearly marked in the- leading case of Montgomery County Bank v. Reese, 26 Pa. 143, where Chief Justice Lewis says: “ If a bank or any other trustee might deprive the cestui que trust of his stock, without answering for the rise in the value, the beneficial owner would be deprived of the very advantage which he had in view when he made the investment. It is plain therefore, that the ordinary measure of damages, for the conversion or refusal to deliver chattels of determinate value and unlimited production, will not reach the justice of the case when applied to bank stock.” Again he says : “ It is a settled principle in the court of chancery that where a trustee sells stock contrary to his trust the cestui que trust is entitled to his election, to have the stock replaced or the produce of it with the highest interest: Hart v. Ten Eyck, 2 Johns. Ch. 62, 117; Forrest v. Elwes, 4 Ves. 492; Pocock v. Reddington, 5 Ves. 794. If the cestui que trust has an election in equity to have the stock replaced, why shall he not have its value in an action at law where he cannot have the stock itself. If the chancellor would compel the trustee to go into the market and purchase stock to replace what he had improperly sold, although it had risen in value in the meantime, is not that done upon the principle that he is liable for the increased value ? And when a court of law compels him to [609]*609pay that increased value, it does nothing more than prescribe the same rule of justice which a court of equity enforces in another form.”
In Neiler v. Kelley, 69 Pa. 403, it is said by Mr. Justice Shabswood : “ The general rule as to the measure of damages in an action of trover, undoubtedly is well settled to be the value of the goods at the time of the conversion, to which may be added interest up to the time of the trial, unless there were some circumstances of outrage in the ease, when the jury may give more : Jacoby v. Laussatt, 6 S. & R. 300; Dennis v. Barber, 6 S. & R. 420; Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts, 333; Harger v. McMains, 4 Watts, 418. This rule may be considered to have been, to some extent, modified as to stocks, railroad bonds and other securities of a similar nature, by the cases of The Bank of Montgomery v. Reese, 26 Pa. 143; Reitenbaugh v. Ludwick, 31 Pa. 131; Persch v. Quiggle, 57 Pa. 247, and perhaps others.”
In Coningham’s Appeal, 57 Pa. 474, it is said by the same judge : “ The stocks were still a mere pledge; their dividends! and accretions belonged to the pledgor. After the unauthor-.', ized sale of them to third persons, they are also in equity chargeable with what would have been received had they retained them, as they ought to have done until the equity of redemption in the complainant was foreclosed by a sale after notice in the manner prescribed by law. It follows that they must account to the plaintiff and the appellant for the value of the stock at the highest rate which it has at any time since attained in the market.”
It is contended however by the appellants that such measure of damages cannot be applied in the present case because no specified time was fixed for the delivery of the stock wrongfully converted. The appellee reserved the right to sell it upon any occasion that he might desire to do so, intending to provide for a sale in case the prices of the stock market should at any time induce him to conclude to do so, and thus each day was , understood and intended for such delivery, if the appellee so desired and with the duty so to deliver, the sale was a distinctive refusal to. do so. A different conclusion, where stocks are thus pledged, might cause a sacrifice without any regard whatever for the rights of the pledgors and when [610]*610so sacrificed they might be substantially remediless. It is also contended that there could be no recovery because there was no demand or tender by appellee. The appellants sold the stock pledged by the appellee without notice to him or authority from him to do so. They gave him notice that they had sold and they gave him a statement of the results of such sale. He promptly called upon appellants and denied their authority to make the sale and then stated that he had always been ready to protect his loan for which the stocks were pledged and that he was still ready to do so. If they sold and parted with the stocks under the circumstances shown, without' authority of appellee and without notice to him of their intended action, a tender on the part of the appellee became unnecessary. Such conversion dispensed with the necessity of any tender before suit brought. A tender'would have been a vain and useless act, “ Lex neminem cogit ad vana .’seu inutilia.”
It is clear that if the measure of damages as above stated had been applied in the present case the verdict would doubtless have been greatly in excess of what it was, probably to an extent almost double. The learned trial judge in fixing a lower standard for the measure of damages from which the jury found a smaller verdict than otherwise they would have been warranted in finding, cannot successfully be charged with doing that which was harmful to appellants. On the contrary they were advantaged by it and if so it is no ground for reversal.
The assignments of error are not sustained and the judgment is affirmed.