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Opinion of the Court, per GROVER, J.


title was barred as against him. Showing that he was a bona fide purchaser from L. J. Weaver would bar this equity; but this was a defence founded upon new matter, and should have been set up in the answer, and then the plaintiff would, perhaps, have been prepared to meet it. Had the evidence been excluded by the Special Term, the defendant could, if so advised, have taken steps to procure an amendment of his answer, so as to make the defence admissible. Had the General Term reversed the judgment upon the ground that this defence was improperly admitted, a new trial should been ordered to enable the defendant to procure such amendment, which the Special Term has power to grant, upon terms deemed reasonable. Had the General Term ordered a new trial and the defendant had appealed therefrom, the order must have been affirmed by this court, and judgment absolute for the plaintiff ordered. But the General Term did not order a new trial, but gave judgment absolute for the plaintiff. Such a disposition of the case can only be sustained when it is apparent that no evidence which the defendant can give, under any answer which the Special Term has the discretionary power to authorize, will establish a defence, when, as in the present case, the defendant has had no occasion to apply for the exercise of this discretion. (Griffin v. Marquardt, 17 N. Y., 28.) The facts found show that L. J. Weaver had the legal title to the stock; that he transferred this title to the defendant. The counsel for the respondent claims that the equitable title of the plaintiff was available against this title of the defendant, although acquired upon a bona fide purchase, for the reason that L. J. Weaver took the title without the knowledge and consent of the plaintiff. But the plaintiff never had the legal title to this stock. That was transferred to L. J. Weaver by the former owner, and his transfer of the same to a bona fide purchaser gave the latter this title and a right in equity equal to that of the plaintiff, and thus the case comes within the familiar principle that where the equity of the parties is equal, the legal title will prevail. This was the principle upon which Crocker v. Crocker

Opinion of the Court, per GROVER, J.

(supra) was decided. The length of time that the legal title had been held by the trustee, or whether taken in his name with the assent of the equitable owner, cannot affect the equities between such owner and a bona fide purchaser from the trustee. Where the trustee has the legal title and transfers it to a bona fide purchaser, the title of the latter, as to real estate, has always been held to prevail as against any equity to which the estate was subject in the hands of the trustee. The same is true as to stocks or any other personal property. This does not result from any idea of the negotiability of the property, whether real or personal, but from the principle above referred to that, where the equities are equal, courts of equity will not interfere to divest the legal title. (See McNeil v. Tenth National Bank, 46 N. Y., 325.) The proof showed that the defendant was a bona fide purchaser. He paid for the stock in part by butter sold at the time, and the residue of the price was applied in payment of an existing account. (Brown v. Leavitt, 31 N. Y., 113; Seymour v. Wilson, 19 N. Y., 417.) I have examined the exceptions taken to other rulings upon the trial as to the competency of evidence, and think none of them well taken. The judgment of the. General and Special Terms must be reversed and a new trial ordered, costs to abide event.

All concur in result, except CHURCH, Ch. J., not voting. GROVER, J., dissents from opinion of ALLEN, J., that defendant is not a bona fide purchaser. Judgment reversed.

Statement of case.

JOSEPH TAUSSIG et al., Appellants, v. JULIUS HART, Respondent.

Where a stock-broker, without authority, transfers to himself stock of a customer in his hands for sale, in case the stock is subsequently sold at an advance, the customer can charge him with any profits realized from the transaction, or can treat him as having converted the stock to his own use, and charge him with damages for the conversion; but the customer cannot charge him with the price or value of the stock, either as purchaser or as having converted it, and at the same time claim the stock is undisposed of, and the account, for that reason, not closed.

(Argued April 22, 1872; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of the defendant entered upon the report of a referee. The action was brought by plaintiffs, as brokers, upon an account for advances and commissions. They had been engaged in purchasing and selling stocks and gold for defendant under an agreement that the latter was to keep ten per cent margin in their hands and plaintiffs to advance the remainder. Among other transactions plaintiffs bought for defendant 100 shares Pacific mail stock, which stock they subsequently transferred from defendant to themselves, reporting to him the existing market price, and crediting him therefor.

'The referee found that the transfer was of no force as a valid sale, and defendant was entitled, as damages, to a credit upon plaintiffs' account of its value, to wit, the market price then existing; that no right of action had accrued, for the reason that all the stocks purchased, in pursuance of the contract, had not been sold, and that complaint should be dismissed with costs.

Edward L. Andrews for the appellants.

Wilber Shaw for the respondent. An agent to sell, cannot himself become the purchaser. (Cassard v. Hinman, 6

Opinion of the Court, per RAPALLO, J.

Bosw., 8; Bruce v. Davenport, 36 Barb., 349; Utica Ins. Co. v. Toledo Ins. Co., 17 id., 132; Bredenbecker v. Lowell, 32 id., 9; Morrison v. The Ogdensburgh R. R. Co., 52 id., 173; Conkey v. Bond, 34 id., 276; Conkey v. Bond, 36 N. Y., 427; N. Y. Central Ins. Co. v. The National Protection Ins. Co., 14 N. Y., 85.)

RAPALLO, J. The conclusion of the referee, that the defendant is entitled, as damages, to a credit upon the plaintiffs' account of the value of the 100 shares of Pacific mail stock, which the plaintiffs transferred to themselves on the 26th of February, at the then market price, as reported by them to the defendant, and the conclusion that the complaint should be dismissed as premature, for the reason that such shares have not been sold, cannot stand together. The defendant had the right to treat the sale of this stock by the plaintiffs to themselves as void, and to demand an actual sale of the stock, in which event he would incur the risk of any loss arising from its depreciation, and be entitled to the benefit of any rise, or he could elect to affirm the sale and hold the plaintiffs to the price which they had reported; but he could not do both. If the plaintiffs had, after taking the stock to their own account, sold it at an advance, the defendant could charge them with any profit realized by them from the transaction, or he might treat them as having converted the stock to their own use and charge them with damages for the conversion; but he cannot charge the plaintiffs with the price or value of the stock, either as purchasers or as having converted it, and at the same time claim that the stock is undisposed of, and the account for that reason not closed.

The referee having adjudged, the plaintiffs liable for the market value of the shares, as reported by them on the 26th of February, 1870, nothing remained to be done except to adjust the account between the parties on that basis. Neither the evidence nor the report disclose the state of this account. The case does not appear to contain all the evidence, but shows that the complaint was dismissed on the sole ground

Statement of case.

that the action was prematurely brought. If the plaintiffs are held to have converted the 100 shares to their own use, they are chargeable with the damages for that conversion; but that does not preclude them from recovering whatever sums the defendant may owe them on the other transactions embraced in the account. The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


Where the court has jurisdiction of the subject-matter of an action, consent will confer jurisdiction of the person, and in case of a foreign corporation such consent may be expressed by appearing by attorney and answering generally in the action. (Jones v. N. & N. Y. Transportation Co., 50 Barb., 193, criticised and limited.)

Plaintiff went with his baggage to defendant's depot in Philadelphia to take passage to Chicago; upon presenting his baggage, the baggage-master, in accordance with a rule of the defendant, declined to check until plaintiff had procured his passage tickets; he left his baggage to procure tickets; in his absence the baggage-master caused it to be placed in the baggage car, and on plaintiff's return with tickets, the baggagemaster refused to give him the checks without his paying extra compensation on account of extra weight beyond what, by defendant's regulations, the tickets purchased would carry free. Plaintiff refused to pay the extra charge and demanded his baggage; this the baggage-master refused to deliver, for the reason that it was covered by other baggage, and in order to reach and return the trunks it would delay the train beyond the time fixed for starting. Plaintiff declined to take passage without his checks; his baggage was taken through to Chicago, and on the night after its arrival was destroyed by fire. The action was for the conversion of the baggage. Held, that defendant did not occupy the position of common carrier of the plaintiff, and could not avail itself of any of the rules which have been established as to the liabilities of common carriers of passengers. Also, that defendant was liable for the acts of the baggage-master, though that act should be held wrongful. It was further held by FOLGER, J.; ALLEN, J., concurring, that the question whether the reason given for the retention of

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