H. L. Hollister, Appellant, v. Samuel Dinsmore, Appellee.
Gen. No. 19,916.
(Not to be reported in full.)
Abstract of the Decision.
1. Pledges, § 24
—effect of conditional delivery of stock to pledg- or. Where it appeared that defendant executed and delivered a' note to plaintiff and deposited with him as collateral security a certificate of stock in a corporation, and that the note being not paid when due, defendant called at -plaintiff’s office and requested permission to take the collateral, sell it and bring back the proceeds, saying that he had a chance to sell all his stock in the com-pany including that in plaintiff’s hands, but that the purchaser wanted all or none, and the amount then due to plaintiff was computed and a demand note -for that amount made out and signed by defendant, and the collateral was delivered to him for the pur*378pose and upon the understanding stated and defendant sold the stock but failed to account for the proceeds, held that the delivery of the stock by plaintiff to defendant was not an unconditional delivery of the same, but that defendant received it merely as the agent of the plaintiff for the special and limited purpose of selling the same for plaintiff’s benefit, and that plaintiff’s lien was not thereby lost, and the failure or refusal of defendant to return either the stock or the proceeds constituted a conversion.
*377Appeal from the Superior Court of Cook county; the Hon. Claeence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
Reversed and remanded.
Opinion filed February 4, 1915.
Statement of the Case.
Action by H. L. Hollister against Samuel Dinsmore in trespass on the case and in trover. The trial court held “that the evidence introduced on behalf of the plaintiff did not tend to sustain an action other than in assumpsit. From a judgment on a directed verdict for defendant, plaintiff appeals.
Harris F. Williams, for appellant; Eldon M. Votaw, of counsel.
No appearance for appellee.
Mr. Presiding Justice Fitch
delivered the opinion of the court.
*3782. ' Trover and conversion, § 34
—joinder of trover and case. It is permissible to join counts in trover and in case in the same declaration.
3. Trover and conversion, § 34*—propriety of declaration in case and trover. Upon a declaration in trespass on the case and in trover for the conversion of a certificate of stock intrusted to a pledgor to sell and account for the proceeds to the pledgee, held the trial court erred in finding no recovery could be had except in assumpsit.
4. Pledges, § 46*—measure of damages for conversion 8y pledgor. Where a pledgor secures possession of stock in a corporation from his pledgee for the purpose of effecting a sale of the same and accounting for the proceeds to the pledgee, upon his failure to do so the measure of damages is the value of the collateral with interest from the time of the conversion, unless such amount exceeds the sum due the pledgee, and such value is, of course, material in a tort action.