
    Samuel B. Deming, plaintiff and respondent, vs. Benjamin Bailey, defendant and appellant.
    1. A loan of shares of stock, accompanied by a power of attorney to transfer the stock, for the special purpose of being used by ttie borrower in his business, will not authorize him to sell such substituted stock and assign his claim to the proceeds of such sale to a third person. The fact that the borrower is the husband of the lender, will make no difference, if the stock be her sole property.
    2. Any sale by the borrower, in such a case, of such substituted stock, which becomes the property of the lender, by being bought with her means and with her sanction, when made without the authority of the lender, becomes a wrongful conversion of it by him. But if she ratifies it, she will be entitled to the proceeds of the sale.
    (Before Mom chief, Robertson and Monerl, JJ.)
    Heard January 4, 1864;
    decided January 5, 1864.
    This was an appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of the jury, and also from an order denying; a new trial.
    
      The complaint alleged that on the 15th day of March, 1860, one Egbert Deming sold and delivered to the defendant herein, twenty shares of St. Nicholas Insurance Company stock, at the rate of twenty dollars per share, amounting to the sum of $400; that $102 had been paid on account, and that there remains due $298, with interest, That on the 30th day of June, 1860, Egbert Deming sold and transferred to the plaintiff the aforesaid claim. The answer put in issue all the allegations of the complaint.
    On the trial Egbert Deming was examined as a witness, in behalf of the plaintiff, and testified that on the day mentioned in the complaint, he sold to the. defendant twenty shares of St. Nicholas Eire Insurance stock, at 80, amounting to $400, That the defendant paid him $75 on account of the purchase money, at the time of the sale, and promised to pay the balance in about ten days ; and about two or three weeks after the sale, he paid $27 more, on account. That at the time of the sale the stock stood-on the books of the company, in the name of Benjamin Bailey, the brother of the defendant. That the witness made a loan on that stock, in connection with sixty shares of Knickerbocker Life Insurance stock. That the balance of the price not being paid, he, the witness, on the 30th of June, 1860, assigned the claim therefor to the plaintiff, who was now the owner of the same. Being asked where he got this stock, the witness answered that he bought it of Greorge. R. Howell, and gave him, in exchange, some stock of the Hydeville Marble Company, which belonged to his (the wit» ness’) wife ; that she gave him a blank power of attorney to transfer it, and with that he purchased the stock in question, and took it in his own name ; that it never stood in her name, and he never purchased it of her. That he used the stock in his business, without objection on her part. That he told his wife that he had made the transfer, and had got possession of the stock ; that he informed her he had hypothecated it, and borrowed money on it.
    Elizabeth T. Deming, the wife of Egbert Deming, was also examined as a witness, and testified that she at one time owned some Hydeville stock, which she authorized her husband to sell; that when she gave him the power, of attorney to sell the stock, she did not know what he was going to do with the stock; that she gave it to him to use for his business purposes. That he did not then tell her what he did with it, hut did afterwards tell her that he had got a loan on it; that he used the money obtained upon it, in his business.
    The jury rendered a verdict in favor of the plaintiff, for $359.05.
    
      E. Pierrepont, for the defendant, appellant,
    
      J. Wilson Green, for the plaintiff, respondent.
   Robertson, Ch. J.

A motion to dismiss the complaint was made on the trial of this action, on behalf of the defendant. The only ground suggested for it was, that no cause of action had been proved. This, of course, would not include a variance between the cause alleged in the complaint and that proved, but embraced a failure to prove the plaintiff’s right to the proceeds of the stock alleged to have been sold to the defendant. That right would depend on the question of ownership of such stock, and if that were established to have belonged to Mrs. Deming, would involve the right of her husband to sell and transfer her claim to such proceeds to the plaintiff. The first question, therefore, to be disposed of is, whether there was any evidence of the ownership of such stock by the plaintiff's son. If not, and the stock was his wife’s property, was there any evidence of her authority to him to sell it or transfer the proceeds ?

The stock in question was procured from a Mr. Howell by the plaintiff’s son, in exchange for stock in a marble company (the Hydeville) belonging to Mrs. Deming, transferred under a power given by her to her husband to do so. Mrs. Deming testified that she authorized her husband to sell the Marble Company stock ; she did not know what he was going to do. with it, when she gave him such power of attorney to transfer it, but gave it to him to use for his business purposes. He did not tell her then what he did with it, but did afterwards ; he told her he had got a loan upon it, and did not give her any of it, but used it in his business, for which she gave it to him. That she had no claim for this, and never pretended to have any. She did not testify to any other authority given by her to her husband to sell the Insurance Company stock, or assign any claim for the proceeds.

Egbert Deming (the husband) testified that after such acquisition of the Insurance Company stock, he told his wife he had made the transfer, and “got possession of the stock,” and that his wife purchased it of Mr. Howell. He admitted that he had stated on a former trial, that the Insurance Company stock belonged to his wife, and he believed so, and stated further that her interest had not changed since such trial. That stock stood in his name, until sold.

Undoubtedly, the authority from Mrs. Deming to njake the exchange of shares of stock was complete, but that did not make the Insurance Company stock the property of her husband. According to her testimony, her only authority to hiip was to use the power of attorney for his business purposes, and he did so by procuring the new stock in place of the old. He also seems to have borrowed money on it, with her sanction; but there is no evidence that he ever informed her of any sale to the defendant before the" commencement of this action, or that she ever authorized him to do any thing with such new stock. The stock was clearly hers, bought with her means, by her sanction, and if sold by her husband without her authority, was wrongfully converted by him ; and she alone had a right to the proceeds of the sale. His marital rights gave him no greater authority to dispose of' her property without her consent than the ordinary agent of one who was a stranger to such agent would have. If the rights of a married woman, when authorized by law to own and dispose of her property, •free from the control of her husband, are to be protected at all, she cannot be deprived of them by her husband, by any means short of those which would be required in the case of a stranger. And on the other hand, third persons, dealing with either husband or wife, in regard to her property, are entitled to be protected against a double claim, The fact of the stock standing in the name of Deming (the son) would, perhaps, have excused the defendant^ if he had paid the proceeds to him ; but there is no evidence in the case of any authority from Mrs. Deming to sell her claim against the defendant, if any, to the plaintiff. It would seem, from the testimony of Deming, (the son) that she had, at some time, assigned her interest in such stock to the plaintiff, but that would not carry her right to the proceeds, (1 Comst. 522,) even if made before the commencement of this action, of which there is no evidence.

Whatever may, therefore, have been the right of Mrs. Deming to sue for the proceeds of the stock in question, there was no evidence that it ever passed to the plaintiff. Her disclaimer on the trial is of no avail”, as it was since suit brought. The complaint should have been dismissed for the failure of the plaintiff to prove the derivation of his title to the claim in controversy, through some duly authorized agent of Mrs. Deming.

The judgment should be reversed, and a new trial had, with costs to abide the event:

McCunn, J.

This action was brought against the defendant, on a certain contract, to recover the sum of #298, with interest. The plaintiff alleges that Egbert Deming sold to the defendant twenty shares of the St. Nicholas Eire Insurance Company stock, at $25 per share, amounting to the sum of $400. That only a part of the consideration money was paid at the time, leading a balance due of $298. That said Egbert Deming, on the 30th day of June, 1860, duly assigned that balance to the plaintiff, Samuel B. Deming, for the recovery of which he brings this suit. To establish his cause of action, the plaintiff called said Egbert Deming to prove the sale of the stock by him, to the defendant, and also to prove the assignment of the claim to the plaintiff. He swears that the consideration with which he purchased the stock in question belonged to his (Egbert Deming’s) wife y that she gave him a blank power of attorney to transfer other stock, and that with the proceeds of the transfer he purchased the stock, which he swears he sold to the defendant.

This case was tried twice. On the first trial he swore the stock belonged to his wife, and that he merely borrowed the money on the same for her ; and, on the second trial, he swore that that which he swore to on the former trial Was true and correct. He swore he never bought it of his wife; that the stock was bought for his wife, and was bought with her property ; that her interest was the same as it was at the former trial, and that it has not changed since then.

On this state of facts, When the plaintiff rested, it clearly appears the stock and the proceeds thereof belonged to Mrs. Deming, and the court below should, of its own motion, have nonsuited the plaintiff. There being no evidence, until that time, vesting the plaintiff with a cause of action, although Deming, the assignee, swore that the stock was not his, but his wife’s, and that he had a power of attorney to dispose of the stock for her, I can find no testimony in the case, showing that that power gave him the legal right to appropriate the proceeds of said stock to his own use. Taking his testimony on the former trial, (which he swore on this trial was true,) and the testimony on this trial together, his evidence does not establish at law a good cause of action. There being, however, no motion for a nonsuit on the part of the defendant’s counsel, when the plaintiff rested, perhaps the learned judge who tried the case was justified in going on, and hearing all the evidence.

I believe, however, that after both parties had rested, and after all the proof was in, the plaintiff had no stronger cause of action than he had at the time he rested, and "the learned judge, when he submitted the case, erred in charging the jury “ That if they believed the assignor, Egbert Deming, in what he had sworn to, they must find for the plaintiff.”

I am of opinion,- that taking all the testimony together, and believing the same to be trite, such testimony' did not, in law, vest a title to the stock in question, or the proceeds thereof, íü Egbert Doming, the assignor, and he having no title, could pass none. At the close of the evidence, the learned judge should have granted the defendant’s motion for a nonsuit.

The judgment below should be reversed, and a new trial ordered.

Moncrief, J. concurred.

New trial granted.  