Minshall v. Arthur

New York Supreme Court

Minshall v. Arthur

9 N.Y. Sup. Ct. 662

DecidedJuly 1, 1874

StatusPublished

This text of 9 N.Y. Sup. Ct. 662 (Minshall v. Arthur) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Minshall v. Arthur, 9 N.Y. Sup. Ct. 662 (N.Y. Super. Ct. 1874).

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Opinion

Barnard, P. J.:

The firm of Aldrich, Sharpe & Company, of which firm defendant was one of the members, agreed to buy, and did buy, 100 shares of the Chicago and North-western preferred railroad company stock, in the spring of 1867, for the plaintiff. The plaintiff paid $1,000 to defendant’s firm, as margin. The stock declined, and plaintiff put up $500 more margin, in April, 1867, which he withdrew on July 8th, 1867. In the latter part of July, the defendant’s firm failed, made an assignment, and sold plaintiff’s stock. The plaintiff received a small dividend under defendant’s assignment, and the defendants were subsequently discharged under the bankrupt act.

The conversion of the stock is not denied; but the defendant seeks to defend this action upon two grounds: 1st. That the plaintiff has, since the conversion, waived the tort; and such being the fact, 2d. That the claim for the money has been discharged, under the bankrupt law. The plaintiff had a cause of action; has it been extinguished ? If it has not, he still has it. It was not extinguished by his silence, upon being informed of the unauthorized sale of the stock. There are cases where silence will conclude a party who suffers acts to be done inconsistent with his claim, and the rights of others are thereby prejudiced; but a failure to object after conversion, without his knowledge, is not such a case. The party has six years to enforce his claim. The receipt of the dividend of defendant’s assignee did not, of itself, extinguish the plaintiff’s claim. The dividend must have been received with the intent thereby to extinguish the claim, or with the knowledge of the fact, that the, receipt of the money would extinguish it. This [664]*664question was submitted to the jury, and we think, under the evidence, the verdict of the jury cannot be set aside by an appellate court. Judgment affirmed, with costs.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.

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Barnard, P. J.:

The firm of Aldrich, Sharpe & Company, of which firm defendant was one of the members, agreed to buy, and did buy, 100 shares of the Chicago and North-western preferred railroad company stock, in the spring of 1867, for the plaintiff. The plaintiff paid $1,000 to defendant’s firm, as margin. The stock declined, and plaintiff put up $500 more margin, in April, 1867, which he withdrew on July 8th, 1867. In the latter part of July, the defendant’s firm failed, made an assignment, and sold plaintiff’s stock. The plaintiff received a small dividend under defendant’s assignment, and the defendants were subsequently discharged under the bankrupt act.

The conversion of the stock is not denied; but the defendant seeks to defend this action upon two grounds: 1st. That the plaintiff has, since the conversion, waived the tort; and such being the fact, 2d. That the claim for the money has been discharged, under the bankrupt law. The plaintiff had a cause of action; has it been extinguished ? If it has not, he still has it. It was not extinguished by his silence, upon being informed of the unauthorized sale of the stock. There are cases where silence will conclude a party who suffers acts to be done inconsistent with his claim, and the rights of others are thereby prejudiced; but a failure to object after conversion, without his knowledge, is not such a case. The party has six years to enforce his claim. The receipt of the dividend of defendant’s assignee did not, of itself, extinguish the plaintiff’s claim. The dividend must have been received with the intent thereby to extinguish the claim, or with the knowledge of the fact, that the, receipt of the money would extinguish it. This [664]*664question was submitted to the jury, and we think, under the evidence, the verdict of the jury cannot be set aside by an appellate court. Judgment affirmed, with costs.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.

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Bluebook (online)

9 N.Y. Sup. Ct. 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minshall-v-arthur-nysupct-1874.