
    Brown v. Lawton.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Trover and Conversion—Damages—Value of Stock.
    In an action for conversion of stock, which had no market value, there was evidence that about a year before the conversion defendant had admitted that he had sold other shares of the same stock for $200 per share, and that a third person had sold some shares to defendant for $55. Held, that defendant had no cause to complain of a verdict for $25 per share for the stock converted.
    Appeal from circuit court, Hew York county.
    Action by ICate F. Brown against J. Warren Lawton, the complaint being as follows, omitting formal parts: “(1) That on and prior to the 27th day of December, 1883, the plaintiff was the owner of thirty-seven shares of the capital stock of a certain corporation known as ‘ The Kennedy Brick and Tile Machine Company.' (2) That on or about said date the defendant undertook with the plaintiff, as her agent, to sell said shares. That thereafter he received same from the plaintiff for that purpose. (3) That, as plaintiff is inr formed and believes, the said defendant thereupon sold twenty-five of said shares, and that he received therefor the sum of five thousand dollars. (4) That said defendant so sold same as the agent of this plaintiff. That he received therefor said sum as the agent of this plaintiff. That he so received said sum on or about the 8th day of February, 1884. (5) That said defend-
    ant has paid to this plaintiff of said sum so received by hinf two thousand dollars, and no more. That he has failed and refused to pay to plaintiff the balance remaining unpaid to her of said sum of five thousand dollars, to-wit, the sum of three thousand dollars. That plaintiff has demanded of him such payment of such balance before this action. (6) That, as plaintiff is informed and believes, the said defendant has not sold the twelve shares remaining of said thirty-seven shares of said stock. That lie has appropriated and converted same to his own use. That after a reasonable time after the aforesaid receipt by him of same from the plaintiff, plaintiff, before this action, demanded the same of said defendant, but that he refused and refuses to redeliver same to the plaintiff. That he still unjustly detains the same. (7) That, as plaintiff is informed and believes, the value of said shares was and is two thousand four hundred dollars. Wherefore plaintiff demands judgment against said defendant for said sum of three thousand dollars, the amount of the balance aforesaid, with interest thereon from the 8th day of February, 1884, and for the recovery of the possession of said last-mentioned twelve shares of stock, or for two thousand four hundred dollars, the value thereof, in case a-delivery cannot be had, together with the costs of this action.” Verdict for plaintiff for .$4,153.50. Defendant appeals.
    Argued before Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      Smith <& Bowman, for appellant. Matthew Daily, for respondent.
   Barrett, J.

The appellant misapprehends the gist of this action. It is-not an action for damages sustained by the defendant’s fraud, but for money which he received for her upon the sale of certain stock. The complaint, it is true, alleges that in the course of the negotiation the defendant made false-representations to the plaintiff, and deceived her as to the price which the-purchaser would pay. This, however, was nothing more than a statement of the fraudulent incidents which, the plaintiff says, occurred in the course of the negotiations, and which enabled the agent successfully to deceive his principal as to the amount received for her. These incidents were in the nature of evidence, and were not essential to the complaint. The true issue was the narrow one submitted to the jury by the learned judge at circuit. It was-this: Did Lawton purchase the stock for himself, directly from the plaintiff, for $2,000, and then lawfully sell it to one Sterling for $5,000? Or did he sell the stock to Sterling as plaintiff’s agent, receiving $5,000 therefor, deceiving his principal as to the real purchase price, accounting to her for but $2,000, concealing the receipt of the additional $3,000, and fraudulently retaining the latter sum to his own use? The jury found against Lawton on this issue, and we need say no more upon the subject than that there is nothing in the case to justify our disturbing tne verdict.

The only exceptions in the case are to the refusal to dismiss the complaint-at the close of the plaintiff’s case, and again when the evidence on both sides-was in. The learned judge was entirely right in denying these motions, and in submitting the questions of fact to the jury. He submitted them in a charge of perfect fairness, evincing due consideration for the defendant’s position, and dwelling fully and fairly upon every fact which could help him. Our conclusion is that the appeal on this branch of the case is without merit.

That disposes of the main appeal. The other cause of action brings up a question of damages. It seems that the plaintiff gave the defendant 37 shares-of stock, supposing that they were all to be delivered to the purchaser for the-$2,000. It appears, however, that the defendant received the $5,000 for but 25 of these shares, and that, besides the $3,000 in cash, he has also retained the remaining 12 shares. The plaintiff demanded the latter before this suit was brought, and, upon the defendant’s refusal to deliver them to her, she included in her complaint a cause of action for their conversion. The verdict-upon the main issue also carried the case as to these 12 shares, and the only other question on that head is as to the amount of damages. The jury awarded $300, or $25 per share. This certainly was- not excessive. The shares had no market value, and the testimony was necessarily limited to special sales, and to the condition of the company. The demand was in December, 1886, and the defendant, in the latter part of 1885, admitted that he had sold some of this stock for $200 per share,—when, he did not say. A witness (Jandon) also testified that he had sold a lot of this stock to the defendant for $55 per share,—when, does not clearly appear, but it was .certainly subsequent to the defendant’s sale to Sterling. The latter sale was also to be considered, in connection with the subsequent status of the company. Upon this testimony the learned judge properly submitted the question of damages to the jury, and their verdict seems to be reasonable, if not insufficient. The defendant did not claim that there xvas no proof of damage to go to the jury. Hor did his motion to dismiss include this point. On the contrary, he requested the court to charge the jury that “a special sale of stock would not fix the market value of it. ” The court acceded to this request, charged it, and added that, while such a sale would not be conclusive, the jury might consider it in determining the value. This was not excepted to, and no further observations upon the subject were made. There was therefore no re viewable error, and the evidence of value, though slight, was sufficient to support even a larger verdict. It follows that the j udgment should be affirmed, with costs. All concur.  