Holly v. First National Bank of Kenosha
Holly v. First National Bank of Kenosha
Opinion of the Court
Plaintiff seeks to recover damages for the alleged conversion by the defendant of one hundred and eighty shares of corporate stock belonging to plaintiff, but which had bfeen pledged with her consent, prior to February 8, 1930, as collateral security for indebtedness owing by her husband, L. J. Holly, to the defendant. The conversion charged was based upon the defendant’s sale of that stock, as such collateral, on June 23, 1933, in violation of an alleged contract made on February 8, 1930, under which the defend-ant was to return the stock to plaintiff on demand, instead of selling it as collateral. The evidence as to whether the defendant so agreed is so conflicting that the court considered plaintiff’s testimony to that effect so highly improbable that it was unbelievable, and principally on that ground the court directed a verdict for the defendant. On this appeal the defendant concedes, although it still contends that plaintiff’s testimony was unbelievable, that there was nevertheless an issue of fact for the jury in that respect, if the alleged agreement was otherwise valid as a contract. On that point the defendant contends that there was no valid contract because there was no consideration for that agreement. In order to pass upon that question the following facts must be noted:
On February 8, 1930, the defendant was entitled to hold plaintiff’s one hundred and eighty shares of stock as the collateral, which together with stock of his own, had been pledged by her husband, with her consent, to secure his indebtedness to the defendant, which then exceeded $67,000. On that date, upon the defendant informing L. J. Holly that it wanted to sell four hundred shares of his pledged stock in order to reduce his indebtedness, he requested the defendant to sell all of the pledged stock excepting the plaintiff’s one hundred and eighty shares and fifty shares of bank stock, which belonged to him. Such a sale at that time would have netted $2,500 in excess of the entire indebtedness. At a subsequent conference on that day betwee'n the plaintiff, L. J.
If, upon that testimony of the plaintiff and L. J. Holly, it should be found that an agreement was made on February 8, 1930, between the defendant and L. J. Holly, that the defendant was never to sell plaintiff’s stock, but to return it to her on demand, that agreement in effect released plaintiff’s one hundred and eighty shares as collateral, and in that respect constituted a modification of the existing contract between L. J. Holly and the defendant, as to the use which the defendant had, theretofore, been authorized to make of those shares. Although that agreement may have been made by L. J. Holly solely for plaintiff’s benefit, the validity and enforcement thereof by her, as a third party for whose benefit a promise was made in a valid contract, was not dependent-upon some consideration also passing or existing directly between her and the'defendant. Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440. Under the rule established in that case, it is sufficient if there was consideration as between the
It follows that, if such a modifying agreement was in fact made between the defendant and L. J. Holly, there was sufficient consideration to render the promised release of plaintiff’s stock valid and enforceable as a contract in so far as it was for her benefit.
By the Court. — Judgment reversed, and cause remanded for a new trial.
Dissenting Opinion
(dissenting). As I read the record, the alleged agreement was directly between the plaintiff and the bank, and was not one made between plaintiff’s husband and the bank, for her benefit. This being true, the original consideration between the husband and the bank would not support it, and the cases cited in the opinion of the court would appear to be inapplicable.
I am authorized to state that Mr. Chief Justice Rosen-berry and Mr. Justice Nelson concur in this opinion.
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