Opinion
No. 18366
Decided December 2, 1924.
Corporations — Conversion — Refusal to transfer stock upon books — Measure of damages — Conversion determined by judgment — Failure by defendant to except or prosecute error.
1. In an action for conversion for wrongfully refusing to transfer stock on the books of the corporation, on application of the bona fide owner and holder thereof, the measure of damages is the market value of the stock at the time the right of action accrued, if the stock had a market value. If the same had no market value, then the measure of damages is its actual value to be determined by all the circumstances, such as dividend earning capacity, good will of the corporation, or any other elements going to make up its actual value. ( Fosdick v. Greene, 27 Ohio St. 484, 22 Am. Rep., 328, and Freon v. Carriage Co., 42 Ohio St. 30, 38, 51 Am. Rep., 794, approved and followed.)
2. In the trial of such an action where the court of common pleas has found a conversion and allowed nominal damages therefor, and the defendant against whom such Judgment was rendered has taken no exceptions thereto, such Judgment of the trial court is conclusive of the fact that there was a conversion, and the defendant not having prosecuted error to such judgment is bound thereby.
ERROR to the Court of Appeals of Hamilton county.
This case comes into this court on error from the Court of Appeals of Hamilton county and involves the question of the measure of damages in an action in conversion by failure of a corporation to transfer stock upon request by one claiming to be a bona fide holder and owner thereof. The facts disclosed by the record that are material to the decision may be stated as follows:
On May 29, 1922, Emmons R. Booth received from R.C. McConaughy an assignment of 60 shares of the capital stock of the Cincinnati Finance Company and in consideration therefor gave checks in the value of $650, and in addition thereto there was some understanding between Booth and McConaughy with reference to a previous indebtedness, making the total consideration for the stock in question between $1,200 and $1,300. Booth claimed to be the bona fide holder and owner of this stock by assignment from McConaughy, the stock being indorsed upon the back:
"For value received, I hereby sell, assign, and transfer unto Emmons R. Booth, sixty shares of the Capital Stock represented by the within certificate and do hereby irrevocably constitute and appoint Emmons R. Booth, attorney, to transfer the said stock on the books of the within named company, with full power of substitution in the premises.
"Dated May 29, 1922.
"R.C. McConaughy."
Afterwards, to-wit, on October 16, 1922, Emmons R. Booth, defendant in error, presented the stock for transfer upon the books of the Cincinnati Finance Company, plaintiff in error, at its office. Transfer was refused by the company, basing its refusal upon certain transactions which had theretofore taken place between it and R.C. McConaughy, plaintiff in error, said company being under the impression that it was legally justified in so refusing, although afterwards admitting that this impression was not well founded in law and that Emmons R. Booth was a bona fide holder for value and entitled to such transfer.
Afterwards, to-wit, on November 9, 1922, Emmons R. Booth filed a petition in the court of common pleas of Hamilton county against the Cincinnati Finance Company, plaintiff in error herein, setting forth two causes of action. The first cause of action was for the conversion of 60 shares of stock of the defendant company of the par value of $10 a share, plaintiff claiming that the defendant without any cause, justification, or excuse whatsoever had wrongfully refused to transfer the stock, thereby converting it to its own use and depriving the plaintiff of his lawful and rightful use thereof; that the reasonable value of said stock was $840. For a second cause of action Booth claimed that on or about the 15th of September, 1922, the defendant company had declared a quarterly dividend, payable on the first of October, amounting to $16.50; that the defendant company had deprived him of such dividend, to which he claimed to be entitled by reason of his transfer from the original owner McConaughy. The plaintiff also claimed exemplary damages in the sum of $400, and $400 attorney fees, making a total of $1,656.50, with interest on $85.6 from October 16, 1922.
The answer was a general denial. Upon the pleadings thus made up the parties went to trial, and, at the conclusion of all the evidence, upon cross-motions for instructed verdicts, the court found the plaintiff "entitled to nominal damages only on the first cause of action set forth in the petition in the sum of one cent and damages on the second cause of action in the sum of $16.50, with interest thereon from the 16th of October, 1922, in all the sum of $17.03. To all of which the plaintiff, Emmons R. Booth, excepts."
A motion for a new trial was made by Booth, which was overruled, and judgment rendered. Error was prosecuted to the Court of Appeals by Booth (defendant in error here), resulting in a reversal of the court of common pleas upon the measure of damages, and the Court of Appeals "proceeding to render such judgment as the court below should have rendered, hereby orders, ad judges, and decrees that the defendant in error. the Cincinnati Finance Company, pay to the plaintiff in error, Emmons R. Booth, the sum of $720, with interest from October 16, 1922, to October 1, 1923, to-wit, $41.40, and $16.50, with interest from October 16, 1922, to October 1, 1923, to-wit, 95 cents, making a total of $778.85 together with the costs of this proceeding in the Court of Appeals and the costs in said court of common pleas."
To reverse this judgment of the Court of Appeals error is now prosecuted to this court by the Cincinnati Finance Company.
Mr. Herbert E. Ritchie, for plaintiff in error.
Mr. F.B. McConaughy, for defendant in error.
This was an ordinary action in conversion, with a second cause of action for the recovery of dividends declared upon the stock claimed to have been converted, and for exemplary and compensatory damages by reason of the wrongful conversion.
There are certain things found by the courts below which narrow this inquiry down to the question of the measure of damages in a case of this character. Both courts below found that there was a conversion of the stock in question, the court of common pleas finding for Booth, the plaintiff below, nominal damages only. The Court of Appeals reversing this finding allowed compensatory damages under the rule of the market value of the stock at the time that the right of action accrued upon the first cause, of action, but, not finding any malice justifying exemplary damages, refused to allow more on the second cause of action than the dividends theretofore declared upon the stock, and interest thereon.
The question presented, therefore, becomes a single one: What is the rule of the measure of damages in Ohio for the conversion of stock by refusal to transfer without a good and legal excuse so to do, but without malice?
An early decision upon this point in Ohio is Fosdick v. Greene, 27 Ohio St. 484, 22 Am. Rep., 328, wherein it was laid down:
"When a cause of action does accrue in such case, the measure of damage will be the market value of such stock at the time the cause of action accrued. If at that time the stock was worthless, only nominal damages can be recovered."
If the stock had no market value, then the measure of damages is its actual value to be determined by all the circumstances, such as dividend earning capacity, good will of the corporation, or any other element going to make up its actual value. Freon v. Carriage Co., 42 Ohio St. 30, 38, 51 Am. Rep., 794.
These rules have been generally followed in Ohio since decision of above cases.
It is urged by the defendant in error that a different rule having been recognized in other states, the doctrine of intermediate values should be adopted, and that, having filed a cross-petition in error in this case, he is entitled to the benefit of that doctrine, it being claimed that the stock in question having a fluctuating value, and the record showing that a few days after October 16, 1922, it went to $14 a share, he, Booth, the defendant in error, is entitled to an allowance of this increase in value. In support of this view it is urged that the so-called New York rule should be adopted in this instance. This rule may be stated as follows: That the plaintiff may be entitled to recover the highest intermediate value within a reasonable time after conversion. The Court of Appeals refused to recognize this rule, but followed Fosdick v. Greene, supra, and allowed $12 per share, together with the dividends and interest, the record showing that on October 16, 1922, the date of the alleged conversion, the market value of the stock in question was $12 per share.
In so doing we think the Court of Appeals committed no error, and with great respect for the decisions of other states that have adopted a different rule we see no reason to depart from the announcement of this court in its previous decisions.
It is claimed in this case that the judgment of the trial court should be affirmed, and that of the Court of Appeals reversed, because a refusal to transfer corporate stock upon the books of the company does not, under the present statute, amount to a conversion of the stock. Whether or not there was a conversion is a mixed question of law and fact, but the record in this case shows that the trial court must have found there was a conversion, although it allowed only nominal damages. If the decision of the court of common pleas should be held to be a finding that there was no conversion, then the contention of the plaintiff in error in that regard would doubtless be correct; but the judgment which the trial court rendered precludes that conclusion, because it allowed a judgment in favor of the plaintiff below on the first cause of action for one cent damages, and on the second cause of action, for the dividends, $16.50, and interest thereon, making a total of $17.03. In other words, upon the issues joined, the judgment of the court was in favor of the plaintiff below upon both causes of action, so that the consideration of this case must start with the fact as found that there was a conversion of the stock in question. No exception was taken to the finding of the trial court by the Cincinnati Finance Company, and it would now be estopped from denying the correctness of the trial court's judgment. So, starting with the proposition that there was a conversion in the case, nothing remained but to apply the correct measure of damages, and the Court of Appeals was right in so finding.
A further question was presented in argument and is discussed in the briefs of counsel, to-wit, whether the so-called Uniform Stock Transfer Act, Section 8673-1, General Code, has taken away the right to bring an action for conversion by one who is a bona fide holder and owner of stock when the corporation refuses to transfer the same upon its books without lawful excuse.
This question has not been unconsidered, nor should the inference be drawn that the judgment below would be disturbed thereby, but a majority of the court are of opinion that the judgment of affirmance should be rested upon the grounds above indicated. Entertaining these views, it follows that the judgment of the Court of Appeals should be affirmed.
Judgment affirmed.
ROBINSON, JONES, MATTHIAS, ALLEN, and CONN. JJ., concur.