Talty v. Freedman's Savings and Trust Company

ERROR to the Supreme Court of the District of Columbia.

This was replevin by the plaintiff to recover a collateral security pledged to one Kendig, a broker, and by him sold to the defendant. Under the instructions of the court below, the jury found a verdict for the defendant; judgment was rendered thereon, and the plaintiff sued out this writ of error. The facts are fully set forth in the opinion of the court.

Mr. Joseph H. Bradley for the plaintiff in error.

The chattel replevied was a mere chose in action, and was not assigned by the owner. His indorsement in blank did not, at law, transfer any title to it.

Kendig had merely the option to purchase the collateral if the note was not paid.

If the plaintiff's testimony was true, no tender or offer of payment to the defendant was necessary. Wilson v. Little et al., 2 Comst. 443.

Mr. Enoch Totten for the defendant in error.

The rule of exemption as to tender does not apply in a suit against a bona fide purchaser to recover possession of the pledge. Tender to the defendant of the amount due by the plaintiff on his note was necessary to enable him to recover. Demainbray v. Metcalf, 2 Vern. 691; Little v. Baker, Hoff. Ch. 487; Jarvis's Adm. v. Rodgers, 15 Mass. 408; Baldwin v. Ely, 9 How. 580; 3 Pars. on Contr. 274; Story on Bailm., sect. 327; Lewis v. Mott, 36 N. Y. 395; Donald v. Suckling, Law Rep. 1 Q. B. 585; Johnson v. Stear, 15 C. B. N. S. 330.

MR. JUSTICE SWAYNE delivered the opinion of the court.