Opinion
No. 6158.
February 26, 1937.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Action by Albert E. Kabet, receiver of the Monongahela National Bank of Pittsburgh, substituted party plaintiff for Ernst Ruth, former receiver, against James W. Stevenson, who filed a set-off and counterclaim. From the judgment, the plaintiff appeals.
Affirmed.
Carl E. Glock, T.W. Pomeroy, Jr., and Reed, Smith, Shaw McClay, all of Pittsburgh, Pa., for appellant.
Harold E. McCamey, Charles A. Woods, Jr., and Dickie, Robinson McCamey, all of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of the District Court for the Western District of Pennsylvania. The facts are set forth in our prior opinion in which we directed that the right of Dr. Stevenson to a set-off and counterclaim be determined by a jury. Stevenson v. Ruth (C.C.A.) 76 F.2d 501.
On the second trial the right to a set-off was conceded. The only issue left for the jury to determine, therefore, was whether the stock pledged by Dr. Stevenson as collateral was sold by the receiver of the bank without notice to him and for less than its fair market value in a manner which amounted to a lack of due diligence on the part of the bank as pledgee. The jury by its verdict upon proper instructions by the learned trial judge found that the pledgee did not exercise due diligence and care in disposing of the collateral. There was sufficient evidence to sustain this finding.
We are not impressed by the appellant's contention that the pleadings were insufficient to permit the admission of the evidence submitted on behalf of the appellee.
The judgment of the court below is affirmed.