[217 U.S. 127, 128] The only question to be determined in this ease relates to the ownership of fifty shares of preferred stock in the Philip Carey Manufacturing Company, a corporation of Ohio.
On or about May 13th, 1905, Richard Fritz, the owner of such shares, placed the certificate for them in the hands of a member of the partnership of Holzman & Company, brokers, with or through whom Fritz had some dealings. The deposit of the stock with that firm was upon an express agreement that it was to be held by them only to show Fritz's financial responsibility, and was not to pass out of their possession. There was no change in the terms or conditions of that contract. The certificate was in the name of Fritz Brothers, and was thus indorsed:
For value received, I, the undersigned, hereby sell and transfer to Richard Fritz fifty shares of stock within mentioned and described, and hereby appoint _____ true and lawful attorney irrevocable, with power and [of] substitution to transfer said stock on the books of the company. Witness _____ hand and seal this 5th day of January, 1905
Per Otto H. Fritz.
Witness, Max Wintler.
On May 15th, 1905, without the knowledge or consent of Fritz, this certificate was pledged by Holzman & Company with the Unity Banking & Saving Company, as a substituted security for a note, dated March 21st, 1905, for $10,000, which that firm had executed to the bank, other security of substantially the same value being withdrawn at the time of the substitution. That transaction had no connection with any dealings by Holzman & Company for or on behalf of Fritz.
When the pledge to the bank was made, there was pinned to the certificate a blank power of attorney, purporting to have been signed May 13th, 1905, by Richard Fritz in the presence of Ross Holzman, the active member of the firm of [217 U.S. 127, 129] Holzman & Company. None of the blanks in the power of attorney were then filled out, and the only writing on the paper included the date, the name of Richard Fritz in the blank for the signature, and Ross Holzman in the blank for the attestation.
Upon the petition of certain creditors of Holzman & Company, that partnership and the individuals composing it were, on July 1st, 1905, adjudicated bankrupts by the district court of the United States for the southern district of Ohio, the petition charging that the act of bankruptcy was committed May 25th, 1905. Boyden was the first trustee in the bankruptcy case. He subsequently resigned and was succeeded by Bettman. The case was sent to a referee in bankruptcy to take such further proceedings as might be necessary.
Richard Fritz filed in the bankruptcy proceeding a claim, supported by affidavit, that he owned the certificate of stock placed with Holzman & Company, and which, as above stated, was afterwards pledged by that firm, without the authority or knowledge of Fritz, with the Unity Banking & Saving Company. He neither signed, nor authorized to be singed for him, the blank power of attorney of May 13th, 1905, and his name to that paper was a forgery. It does not appear who committed the forgery. But at the time of the hearing of the case, Ross Holzman was beyond the jurisdiction of the court and in parts unknown. The referee so stated.
The relief sought by Fritz was, among other things, an order requiring the delivery to him of the above stock in the Philip Carey Manufacturing Company, free from the claims of all the parties.
At the time of the hearing below, the certificate for the stock has come under the control of court. The Banking & Saving Company asserted its right to the possession of the stock and to retain the certificate therefor, with authority to apply the proceeds of the sale of the stock on the loan for which it had been pledged to the bank. The trustee asked [217 U.S. 127, 130] the determination of the controversy between Richard Fritz and the manufacturing company, and for the protection of the interests represented by him as trustee. He contended that if Fritz did not sign the power in question, he authorized it to be signed for him.
The cause was sent to a referee in bankruptcy, who found that Richard Fritz had never singed the above power of attorney, nor authorized anyone to sign it for him; that he was the owner of the fifty shares of stock represented by the certificate; and that he was entitled to the possession of them, free of all liens and interests, either by the Unity Banking & Saving Company or of the trustee in bankruptcy. The referee thus stated his conclusion of law from the facts found by him: 'Where F deposits with a broker a certificate of stock belonging to F, and in his name, without any indorsement or power to execute or transfer of said stock, upon an agreement that said stock is to be held by said broker as an evidence of F's financial responsibility only, and is not to leave the broker's possession, and the broker pledges said certificate to a bank as security upon a note of the broker for money loaned by the bank to the broker for general use of the broker, the bank holds said certificate subject to all the conditions of the original deposit by F with the broker, and F is not estopped to claim title to said certificate as against the bank by the mere placing of said certificate in the hands of the broker, or the further fact that, in the course of dealings between F and the broker, large balances have, at various times, been owed by F to the broker, when it appears that no demand for the payment of said balances was made upon F, or notice served upon him, changing the conditions of the deposit of said stock, and further, that, at the conclusion of the dealings between F and the broker, F is a creditor, and not a debtor, of said broker.'
This order, upon being brought before the court in bankruptcy for review, was affirmed. The case was then carried by appeal to the circuit court of appeals, which affirmed the [217 U.S. 127, 131] decree of the district court. Only the Unity Banking & Saving Company appealed to this court.
Messrs. Constant Southworth and Louis J. Dolle for appellant.
[217 U.S. 127, 134] Mr. Theodore Horstman for appellee Fritz.
Statement by Mr. Justice Harlan:
Mr. Justice Harlan, after stating the case as above, delivered the opinion of the court:
Briefly outlined, the case, as disclosed by the above statement, is this: The certificate of stock in the Carey Manufacturing Company was placed in the possession of Holzman & Company under an express agreement that it should not go out of their possession, but be held simply for the purpose of showing Fritz's financial responsibility; that Holzman & Company had no authority to pledge the stock with the Unity Banking & Saving Company as security for the payment of their individual note for $ 10,000 to that institution; that the pledging of the stock with the bank by Holzman & Company was without Fritz's knowledge; that his signature to the blank power of attorney was unauthorized by him and was a forgery; that Fritz did not, by anything said, done, or omitted by him, lead the bank to believe that he had executed such power of attorney, or had authorized anyone to do so for him; and that he never, in any way, ratified the forgery of his name, or approved the pledging of the stock to the Unity Banking & Saving Company for the individual debt of Holzman & Company. [217 U.S. 127, 135] In view of these facts,-which the referee as well as the district and circuit courts of appeals correctly held to have been established by the evidence,-it would seem unnecessary to cite authorities to show that, as between the bank and Fritz, the bank did not acquire any interest, legal or equitable, in the stock represented by the certificate placed in the possession of Holzman & Company under the circumstances stated. The bank no doubt relied upon the integrity of that firm, and acted in the belief that Frtiz had in fact signed the blank power of attorney or authorized it to be signed for him. But that belief was not, according to the evidence, superinduced by anything said, done, or omitted by Fritz. He was not chargeable with laches or negligence. The bank, having elected to rely upon Holzman & Company, must stand the consequences. It cannot say that it was misled by Fritz to its prejudice. It could not, therefore, as between itself and Fritz, take anything in virtue of the forgery. As against the true owner, a right of property cannot be acquired by means of a forged written instrument relating to such property. This is the general rule. An exception to the rule arises where the owner by laches, or by culpable, gross negligence, or by remaining silent when he should speak, has induced another, proceeding with reasonable caution, to act with reference to the property, in the belief that the instrument was genuine, or would be so recognized by the owner. In such cases, the owner would be equitably estopped to rely upon the fact of forgery, as against the person who was misled by his conduct. There are no facts in this case from which could arise an exception to the general rule.
Nor, in view of the facts, need we follow the example of counsel and enter upon an examination of the cases bearing on the general inquiry as to the circumstances under which a broker who, by the act of the owner, comes into the lawful possession of a stock certificate,-but without the legal title having been transferred to him,-may retain the certificate as security for any balance ascertained upon settlement due [217 U.S. 127, 136] him on account of dealings for or on behalf of such customer. We say this because it appears and it is so found, that, at the close of the business transacted by Holzman & Company for Fritz, the letter was a creditor, not a debtor, of that firm.
In any aspect in which the case can be properly viewed, and for the reasons stated, the judgment sustaining Fritz's claim to the stock and certificate in question must be affirmed.