Action on a note partially secured by the deposit of shares of stock assigned in blank and delivered to the plaintiff; sale of these shares at private sale to the plaintiff's president after notice to the defendant that they would be sold at public auction constituted a conversion of the defendant's stock; the value of these shares cannot now be set off against the amount due on the note as, from the evidence offered, value could not be determined.
PEASLEY, J.
The payment of the note sued upon in this action was partially secured by the deposit of certain shares of stock of the defendant, assigned by him in blank and delivered to the plaintiff. The defendant failed to pay the note when it fell due and the plaintiff notified him that at a certain time these shares of stock would be sold at public auction at the plaintiff's banking house. At the time and place stated in the plaintiff's notice to the defendant, the plaintiff sold these shares of stock, at private sale, to the plaintiff's president. It did not appear whether the plaintiff's president purchased these shares as president of the plaintiff and on its behalf or in his individual capacity. The defendant had no notice of any private sale of these shares of stock. As these shares were not sold at public auction and as the defendant had no notice of any sale other than by public auction, the sale as to him was the same as though no notice whatever had been given to him and under such circumstances the sale, as to him, was invalid and the private sale of these shares to the plaintiff's president constituted a conversion of the defendant's shares of stock. 49 C. J. 999 Sec. 250.
If it were proper to set off the value of these shares of stock at the time of the conversion against the amount then due upon the defendant's note, it could not now be done, as, from the evidence offered, their value could not be determined.