
    The First National Bank of Waterloo, N. Y., Respondent, v. Francis Bacon, Impleaded with George E. Zartman, as Trustee in Bankruptcy of Francis Bacon, Appellant.
    Fourth Department,
    May 2, 1906.
    Bailment — delivery of scrip not necessary to pledge of stock—stock' pledged to successive, pledgees — in action to reform written pledge consideration may be shown thotigh not alleged — bankruptcy of pledgor no bar to such action—when demand unnecessary—trustee not boná fide purchaser. ' f
    Certificates of stock are not the stock itself; and there may be a valid pledge „of the stock by written transfer without a manual delivery of the scrip.
    Although 4tock has already "been pledged as security, to .one .party with a delivery óf the scrip, it may subsequently be pledged to another party subject to the prior lien, and the possession by the first pledgee will be regarded as the possession of the second pledgee through the agency of the former."
    •In an action to reform a written contract pledging stock when the contract itself ■ . ;Shows that the' pledge was mad.e for past and future indebtedness, it is not error to allow proof of the consideration for the pledge, although none bé alleged in the complaint. The court has power to reform such contract although the pledgor has been adjudged bankrupt, if he and his trustee are made parties.
    Under such circumstances a demand for the reformation of the contract is hot a prerequisite to an action for that purpose, .for neither the bankrupt nor his trustee could comply with the demand.
    The trustee of such bankrupt is not a bona fide purchaser for value so as to bar ■ an action to reform a contract pledging stock made by the bankrupt, for.no new lien will be created by the judgment.
    ■ , Appeal by the defendant George E. Zartman, as trustee in bankruptcy of Francis Bacon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Seneca on the 30th day of October, 1905, upon the decision of the court rendered after a trial at the Seneca Special Term.
    
      Frederick L. Manning and George E. Zartman, for the appellant.
    
      J. N. Hammond, for the respondent.
   Williams, J.:

The judgment should be affirmed, with'costs.

The action was to procure the reformation of a written contract, made by the plaintiff and the defendant Bacon, February 15, 1902.

Before the contract was made Bacon was president of the plain-' tiff, and also of the Waterloo Wagon Company. He was active in the office of the wagon company. The business of the plaintiff was looked after by the cashier Becker. The plaintiff had extended' credit to the wagon company and to Bacon individually, discounting paper and taking notes. The Exchange National Bank of Seneca Falls held, by assignment from Bacon, 461 shares of stock of the wagon company and. 253 shares of stock of the plaintiff bankas continuing collateral security for any existing or future indebtedness of Bacon or the wagon company. The contract between Bacon and the plaintiff as executed did not contain the words “ are transferred to and ” before the words “ may be held by,” etc., relating to these shares of stock, nor the words “now existing or” before the words. “ that may hereafter exist,” relating to the indebtedness to the plaintiff. The court, by its decision, reformed the contract by inserting these words. The evidence was undisputed that these were mutual mistakes ma'de in preparing and executing the contract. In the' meantime, however, Bacon had become a bankrupt, having been so adjudicated May 4, 1904, and defendant Zartman had been áppbinted trustee. This action was begun October 17, 1904'. The trustee alone defends and appeals. Several objections are made to the decision of the court, which we consider.

1. It is said there was no valid pledge of the stock to the plaintiff because possession of the scrip was in the Seneca Falls bank. Delivery of possession of property is ordinarily essential to the making of a pledge, but- in the case of stock there can be no delivery of possession thereof. The scrip is not the stock itself, and as' to property not capable of manual delivery a pledge may be created by a written transfer thereof. (Wilson v. Little, 2 N. Y. 443.)

By the contract here as reformed there was such written transfer and not merely an agreement to make such transfer in the future. Even if delivery of. the scrip to the Seneca Falls bank and the possession thereof by it could be regarded as possession in that bank of the stock, still when the stock was subsequently pledged to the plaintiff, subject to the lien of the Seneca Falls bank, the possession by the first pledgee might be regarded as the possession of the second, pledgee through the agency of the former. (Jones on Pledges [2d ed.], § 83.)

2. It is said that no. consideration for the contract was alleged in the complaint, and it was improper to permit any consideration to be proven on the trial. The contract itself showed a pledge, ipr present and future indebtedness, and it might fairly be assumed, therefore, that there was some.indebtedness then existing. We do not see that any reversible error was committed in aiding such assumption by some evidence of such indebtedness. This action, it-will be remembered, was merely to reform- the contract,' not to establish any indebtedness thereunder. ■ That will be determined in another action if there is -controversy with reference thereto.

3. It is said the court was powerless to afford the relief sought. While very likely Bacon could not, after he was adjudged a bankrupt, have corrected the contract, because the rights of creditors had intervened, and they were represented by the trustee, who alone had power to act for the. debtor as well as the creditors, yet wheñ both Bacon and the trustee were brought into court we see no reason why the relief asked for could not be afforded.

4. It is said no demand was made before suit. No demand was necessary. Bacon could not comply with the demand, and the trustee would not have been justified in doing so. The demand could have served no useful purpose. No costs were allowed plaintiff by the trial court.

5. It is said that the bankruptcy of Bacon constituted a bar to the relief granted in this action. This cannot be true. The trustee took the bankrupt’s property in the same condition and subject to the same liens as the bankrupt himself held it. The trustee is in no, sense a bona fide purchaser for value and entitled to protection as such. No new lien was created by the decision and judgment appealed from. -The original lien was adjudicated and determined.

. We conclude that the judgment is right and should be affirmed.

All concurred.

Judgment affirmed, with costs.  