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Pratt v. Taunton Copper Company.

clearly appears that it has been altered in a material part since execution, and such alteration is not explained, the will would be avoided and ought not to be admitted to probate.

When a will was found mutilated, two days after the death of the testator, in the possession of one interested to defeat it, who had refused to produce it but who had said nothing about the mutilation, it was held that the presumption was that the will was mutilated after the testator's death. Bennet v. Sherrod, 3 Ired. 303.

For a general discussion of the subject of revocation of wills by burning, canceling, tearing or obliterating, see 1 Redf. on Wills, 303, et seq.; 1 Williams ou Executors (6th Am. Ed.), 167; 2 Am. Lead. Cas., note to Lawson v. Morrison.

PRATT V. TAUNTON COPPER COMPANY.

(123 Mass. 110.)

Unauthorized sale of stock certificates.

Certificates of the capital stock of a corporation taken without the owner's knowledge, and with a forged power of attorney, delivered for sale to auctioneers, were sold by them at auction and delivered, together with a new certificate in their own name which they had received from the corporation, to the purchaser; the purchaser presented the certificate to the corporation, which thereupon issued to him a new certificate in his own name. Held, in a suit by the owner against the corporation and purchaser, that the owner was entitled to a new certificate from the corporation, and to the dividends, but not to a decree against the purchaser, and that the rights between the corporation and the purchaser must be settled in a suit between them.*

TWO

WO suits in equity against different corporations and individuals. The opinion states the facts.

G. E. Williams, for plaintiff.

E. H. Bennett, for corporations.

J. H. Hardy, for individual defendant in the first case.

A. S. Wheeler, for individual defendant in the second case.

GRAY, C. J. The plaintiff was the owner of shares in each of the defendant corporations, and certificates therefor, which were taken from her house without her knowledge, and, together with a forged power of attorney in her name to the corporation, delivered

* See Brown v. Howard Ins. Co., 20 Am. Rep. 90.

Pratt v. Taunton Copper Company.

to W. N. Field & Company, brokers, for sale. Field & Company employed Hawes & Henshaw, stock auctioneers, to sell the shares by auction, and they sold them accordingly. Field & Company afterward presented the certificate and power of attorney, in the one case, to the clerk of the corporation, duly empowered to make transfers, and in the other case to the cashier of the bank, and obtained from each a transfer of the stock and a new certificate, with a new number, in the name of Hawes & Henshaw, and delivered it to them; and Hawes & Henshaw delivered and assigned the new certificate to the purchaser in each case, who thereupon paid to them the sum for which he had bid off the stock, which was its fair market value, and they paid the same, less their commission, to Field & Company. The purchaser surrendered the new certificate to the corporation, and the corporation thereupon issued to him another certificate, which he now holds. Neither Hawes & Henshaw nor the purchaser had any knowledge, until after the transfer and issue of the certificate to him. that the plaintiff ever owned the shares; and the purchaser did not see any certificate of the stock until he paid for the one issued to him.

The plaintiff brings a bill in equity against each of the corporations and the purchaser of the shares therein, praying that the latter may be ordered to surrender his certificate to the corporation to be canceled, and that the corporation may be ordered to issue to the plaintiff a new certificate for her shares, and to pay to her all dividends declared or to be declared thereon to the date of the decree, and for further relief.

The questions reserved for our determination in each case by the justice before whom the hearing was had, are, 1st, whether the plaintiff is entitled to the relief prayed for in the bill; 2d, whether she is entitled to relief against the defendant corporation alone; 3d, whether she is entitled to relief against the individual defendant, and, if so, whether the corporation should be ordered to pay to him the amount paid by him for the stock in question, with interest from the date of payment, or any other amount.

It is quite clear that the plaintiff could not be deprived of her stock without consent or negligence on her part, and that, the power of attorney in her name being forged, she may maintain each of these bills to compel the corporation to issue a certificate to her for her shares, and to pay her the dividends thereon. Ashby v. Blackwell, 2 Eden, 299; s. c., Ambl. 503; Sloman v. Bank of Eng

Pratt v. Taunton Copper Company.

land, 14 Sim. 475; Midland Railway v. Taylor, 8 H. L. Cas. 751: Pollock v. National Bank, 3 Seld. 274; Sewall v. Boston Water Power Co., 4 Allen, 277.

But the individual defendant was a purchaser in good faith for full consideration, without knowledge or notice of the plaintiff's title or of the forgery, and does not hold the certificates which she had. The immediate transfer to him was made by Hawes & Henshaw, who then held a new certificate of stock; and the corporation, upon his surrender of that certificate, issued to him another one. His rights against the corporation depend upon the effect of this certificate, and the plaintiff is clearly entitled to no decree against him. Salisbury Mills v. Townsend, 109 Mass. 115; Lowry v. Commercial Bank, Taney, 310; Bank v. Lanier, 11 Wall. 369; In re Bahia & San Francisco Railway, L.R., 3 Q. B. 584. If he had claimed under a transfer which he knew, or he was bound to know, to be forged or invalid, a different case would have been presented. Cottam v. Eastern Counties Railway, 1 Johns. & Hem. 243; Johnston v. Renton, L. R., 9 Eq. 181; Tayler v. Great Indian Peninsula Railway, 4 De G. & J. 559; Denny v. Lyon, 38 Penn. St. 98.

It is contended, upon the precedent of Ashby v. Blackwell, above cited, that the decree should order the corporation to pay to the other defendant the sum which he paid for the stock. But the reports of that case show that all the parties submitted to the decision of the court, as the only question, whether the purchaser or the company should bear the loss. Where, as in this case, the relief given to the plaintiff does not require or involve the decision of any question between co-defendants, the court, unless by consent, does not and cannot decide such a question so as to bind the co-defendants as against each other, but leaves it to be settled in a proper suit between them. Cottam v. Eastern Counties Railway, and Johnston v. Renton, above cited; Cottingham v. Shrewsbury, 3 Hare, 627, 638; Fletcher v. Green, 33 Beav. 426; Sewall v. Boston Water Power Co., 4 Allen, 277, 283; Carlton v. Jackson, 121 Mass. 592, 597.

The result is, that in each case there should be a decree for the plaintiff against the corporation, with costs; and, as to the other defendant, the bill should be dismissed, without costs; this decree to be without prejudice to any question at law or in equity between the co-defendants.

Decrees accordingly.

Morville v. American Tract Society.

MORVILLE V. AMERICAN TRACT SOCIETY.

Corporation Ultra cires

(123 Mass. 129.)

- Arbitration by corporation with limited powers Disqualification of arbitrator.

A corporation chartered for the gratuitous publication and distribution of pious and useful books and tracts, with limited powers of holding property, may, if its permanent income does not exceed the specified amount, receive money on the condition that it is to be returned if a certain additional amount is not received within a certain time, and if a demand is made for the money on the ground that the condition has not been fulfilled, may submit the demand to arbitration.

If a corporation, in excess of its powers, receives money on the condition that it is to be returned unless a certain additional amount is received by it within a certain time, and the condition is broken, an action will lie to recover the money, and a demand for it may be submitted to arbitration. On a notice to confirm award of three arbitrators in favor of A, against a corporation, it appeared as facts that A and one of the arbitrators were familiar acquaintances; that before the submission A had honestly stated to that arbitrator the principal facts in the case; and that thereupon that arbitrator had expressed the opinion that no commercial house could stand upon the transaction; and advised A to submit the matter to arbitration ; held, that no error in law appeared and the award should be affirmed. (See note, p. 46.)

MOTH

OTION in the Superior Court to confirm an award of three arbitrators. It appeared that Robert W. Morville had delivered to the American Tract Society, and that the latter had received from him $5,000, upon the condition among others that the same was to be returned if the society did not receive $50,000 for evangelization purposes within five years. That condition was broken, and the society refused a demand for the money, and the same had not been returned. The demand was submitted to three

arbitrators, one of whom was Snow.

The plaintiff, after the demand, communicated to Snow in the course of several conversations-they being familiar acquaintances and frequent visitors at the houses of each other-all the principal facts of the transaction between the plaintiff and the defendant, which subsequently became the matters of the arbitration and award; and Snow formed and expressed an opinion upon such

Morville v. American Tract Society

facts, to the effect that no commercial house in State street could stand upon such a transaction as that of the American Tract Society; and, in the course of such conversations, advised the plaintiff, in consideration of his age, and to avoid the vexation of a lawsuit, to submit the said matter between him and the defendant to arbitrators; and subsequently, by request of the plaintiff, gave his consent to the plaintiff to be one of the arbitrators of said matter. After Snow's consent thus to act, the plaintiff on several occasions, at Snow's place of business, began to talk with Snow upon the matter of the arbitration, but Snow, without absolutely refusing to hear the plaintiff, and without hearing any details of the matter, advised the plaintiff to make no statements to him, but to reserve them until the hearing before the arbitrators; and after the first meeting of the arbitrators (when there was no hearing) the plaintiff retained counsel, and, after that retainer, Snow, when the plaintiff proposed to talk with him in the matter of arbitration, advised him to go to his counsel. The plaintiff, without any declaration or assurance or ground of expectation to that effect from Snow, except such as may appear in these facts found, relied upon Snow to look out for his interest in the matter of the arbitration. The defendant before the award had no notice of these facts in relation to Snow. There was no evidence affecting the impartiality or conduct of the other arbitrators in the matter of said award.

Judgment was ordered for the plaintiff upon the award; and the defendant alleged exceptions.

The facts concerning the powers of the defendant appear in the opinion. Several other points were raised, which are here omitted from the statement and the opinion

J. W. May, for defendant.

H. D. Hyde, for plaintiff.

COLT, J. The plaintiff paid five thousand dollars to the American Tract Society, under an agreement with the treasurer of that seciety that it should be repaid to him in case the society should not be allowed to retain its catholic condition, and unless fifty thousand dollars be raised within five years for evangelization purposes. A receipt for the money, signed by the treasurer, and reciting that agreement, was given to the plaintiff. There was a VOL. XXV-6

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