Packard v. Herrington

41 Kan. 469

• Court: Supreme Court of Kansas
• Decided: January 15, 1889
• Status: Published

Opinion

Opinion by

Clogston, C.:

When Packard received this note from the bank, he was in no better condition in any event than the bank would have been had it retained the note; and if the bank had retained the note and had pledged or transferred Williams’s stock in the bank, then the bank would have been accountable to Herrington for the value of the stock, which was confessed to be $1,200. Now Williams’s transfer to Packard, by the consent of the bank, was not to secure the $1,500 note, but for the purpose of securing the $1,100 claim. Packard was then holding this stock adverse to the interests of Herrington. This amounted to a conversion of the stock, as far as Herrington was concerned; and Packard, standing in the same relation to Herrington that the bank had, must account for the value of the stock.

Plaintiff, however, insists that if the transfer of the note by the bank to him with the stock transferred all the obligations of the bank as well, and rendered him liable to account for the stock to Herrington, that he was not obliged under this arrangement to take the stock and give credit on the note for its face value, or actual value. In other words, that Herrington must pay the note and then demand the stock, and then, if not delivered, in an action between them determine who had the right to the stock, and if Herrington was entitled to it he could recover it, or its value if converted. In this we do not agree with the plaintiff. When he held the security, admitting its value, and claimed to hold it as a pledge or security for his claim against Williams and adversely to the interest of Herrington — holding it in a different capacity than that in which the bank held it — we think he cannot be permitted to deny the conversion of the stock and compel Herrington to an action to recover its possession. In all cases of this kind one action ought to determine the entire controversy between the parties; and as plaintiff has elected to claim the stock adversely to the defendant, we think where there is no controversy about its value, he is properly charged with its value, and the defendant is entitled to a credit, at least for that amount.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.