, Issue was joined in this action on the 5th day of December, 1899. The first trial was in the month of June, 1901, and at the close of the plaintiff’s case judgment was directed dismissing the complaint on the ground of laches. The judgment was reversed by this court in June, 1902. (Treadwell v. Clark, 73 App. Div. 473.) The second trial was commenced on the 20tli day of December, 1904. The motion to renew the motion to amend the answer was made after the case was placed on the day calendar for the second trial. Without stopping to consider the objections that the appellants cannot now review the order denying the motion to amend on account of the dismissal of the appeal therefrom and owing to their failure to obtain leave to renew the motion, we are of opinion that the motion was properly denied upon the gróund of laches. The plaintiff alleged that he was a resident of the State of Hew York and this allegation was not denied. He was a witness upon the first trial and fully examined concerning his residence. The defendant Clark had known the plaintiff for many years. It is manifest that due diligence on the part of the appellants would have enabled them to have sooner discovered the facts which they sought to set up in their amended answer. If they wished to question the jurisdiction of the court upon the ground that the plaintiff was not a resident of Hew York they should have investigated that fact at the outset and have moved to be relieved from their admission by their pleading arid for leave to set up the other facts which they now deem material to raise the question of jurisdiction and the Statute of Limitations of Montana, knowledge o‘f which could have been readily acquired, if indeed they are not chargeable therewith as the principal defendant, Clark, is a resident of that State. They should have made their motion without having quietly submitted to the jurisdiction of this court and sought relief from the plaintiff’s claim by defending the action for upwards of six years.
On the former appeal from the judgment dismissing the com*500plaint this court decided, many of the questions presented by the present appeal. We there decided that jurisdiction was acquired; that a suit in equity would lie and that the plaintiff, if entitled to .recover, would be entitled to recover the stock if delivery thereof could be made; that plaintiff was not guilty of laches in bringing the action; that no Statute of Limitations was a bar thereto and that a tender was not a condition precedent to the right to maintain the action. Those questions were argued on the former appeal and were necessarily involved. ITnless thejr had been resolved in favor of the plaintiff, we should have affirmed the judgment. The evidence upon which the questions of law which we decided before arise is not materially different now. We should not, therefore, re-examine those points of law, and they must be regarded by this court at least as the law of the case.
It is only necessary to consider some questions discussed in our former opinion, but not finally decided, and any new light in which the case is presented by the evidence offered in behalf of the appellants.
In our former opinion reference was made to evidence indicating that the defendant Clark had actual notice that the stock had been merely pledged by the plaintiff. Allusion was also made to the indorsements upon the certificate, and the opinion was expressed that “ Thus is evidence furnished by the very appearance of the certificate sufficient to put an intending purchaser upon inquiry.” In the former record it appeared that in a conversation between the defendant Clark, the plaintiff and 3VIr. Demond, one of the attorneys for the plaintiff, Clark admitted to them, in effect, that before the purchase of the stock was completed, he had received a letter from Burgess, from whom he received the stock, informing him that the stock had been pledged by the plaintiff to a grocer in London, and this evidence was uncontroverted. Upon the last trial botli the plaintiff and Demond again testified to the same effect, but their testimony in this regard was controverted by the testimony of the defendant Clark. There are many facts and circumstances .tending to corroborate and indicate the probability of the testimony given by the plaintiff and his attorney on this subject, and were it not for the fact tliat other evidence now adduced by the appellants, which is practically uncontroverted, is before us, we *501would be inclined to the Anew that tlie learned trial court, in find-ing that until the 22d day of June, 1893, the defendant Clark had no notice, knoAvledge or information that plaintiff had parted with the certificate only as a pledge to secure an indebtedness to Bennett and that until said date he had no information or notice as to Iioav the certificate came into the possession of Thomas, is against the Aveight of the evidence. It iioav appears, hoAvever, that Burgess opened negotiations for the sale of the certificate of stock by a let-ter to the United Verde Copper Company on the 1st day of May, 1893; that the company referred his letter to the defendant Clark and so notified him by letter on the third of May; that on the sixth day of May Burgess wrote the secretary of the company, inquiring concerning the value of the stock and accrued dividends thereon; that on the thirteenth of May the secretary replied that there were no unpaid dividends, that the certificate stood in the name of Tread-well and that there was no shareholder by the name of Thomas or Burgess; that on the same day the defendant Clark wrote Burgess in ansAver to the latter’s letter to the company of May first, saying: “ I do not find, your name on the list of stockholders of the United Verde Copper Company. There are 800 shares in the name of Geo. A. Treadwell. However, if you hold the stock I am Avilling to pay you $3.00 per share for it,” and informed Burgess that lie would be in Los Angeles, Cal., in a feAv days and that a letter would reach him there at Ho. 933 Olive street; that on the receipt of this letter, Burgess wrote Wells, Fargo & Co. on June second at Los Angeles, inclosing the stock with directions to deliver it to Clark on payment of $300; that notice Avas sent by Wells, Fargo & Co. to the defendant Clark at the address given in his letter to Burgess, and the brother of the defendant Clark called at the office of the express company and Avas informed of the contents of the letter sent by Burgess inclosing the stock, and as he had no knowledge on the subject, he wrote the defendant Clark, at Butte, Mont., saying: “ There is* 100 shares of Verde stock at the" express office to be delivered to you on payment of $300. Shall I take it up; if so, send order for Wells, Fargo & Co. to deliver to me and I can forward by regular mail; ” that on the twelfth of June the defendant Clark Avired his brother in *502answer to this letter: “ Take out Verde stock and pay Wells .Fargo if assigned by Treadwell to Thomas then Burgess; ” that upon the thirteenth day of June the brother of the defendant Clark paid the express company $300 and received the stock and forwarded it by mail to the defendant Clark at Butte, Mont., where it was received on or about the loth day of June, 1893. From this evidence it appears that the sale from Burgess to Clark was consummated prior to the time when he would have received a letter from Burgess, who was at Tucson, Ariz., if written on the 16th day of June, 1893. It is not very material, therefore, whether Clark received a letter from Burgess, dated on the sixteenth day of June, informing him that-the stock had been pledged by the plaintiff in London. To this extent, therefore, the observations contained in our former opinion are inapplicable to the case as presented by this record. The rights of the defendant Clark are to be determined upon the transaction with the express company, representing Burgess, and any knowledge which he possessed or acquired at that time by an inspection of the certificate, or is chargeable with as matter of law for his failure to inquire. It appears that prior to accepting and paying for the stock, neither the defendant Clark nor his brother, who represented him in accepting the certificate, made any inquiry concerning the right of Burgess to sell the stock, other than an examination of the stock book showing that the stock stood in the plaintiff’s name, as appears from the letter to Burgess.
The learned counsel for the appellants lays stress upon the finding in the record now before us, that prior to the 22d day of June, 1893, the defendant Clark had no notice, knowledge or information that the plaintiff parted with the certificate only as a pledge to secure his indebtedness to Bennett, or as to the circumstances under which the certificate came into the possession of Thomas. If this finding is to be construed as a finding that the defendant Clark was a purchaser in good faith and without any notice or knowledge of the rights of the plaintiff, and without notice or knowledge of facts putting him upon inquiry concerning the rights of the plaintiff, there might be difficulty in sustaining the judgment. It might then be argued with some force that the logical conclusion from such a finding would be that the plaintiff in indorsing the certificate had enabled the holder to mislead the defendant Clark to his preju*503dice, and that the plaintiff should be estopped from now claiming that lie did not intend to part with the title. It is manifest, however, that the learned court did not so intend in mating this finding. It is evident that the sole object and purpose of the finding was to show that the learned trial court disbelieved the testimony concerning the letter of June 16, 1893, from Burgess to the defendant Clark, and was of opinion that Clark had no actual notice of plaintiff’s claim until the 22d day of June, 1903, when McDonald, the vice-president of the company, to whom Clark had on the seventeenth day of June forwarded the certificate with the request that he obtain an assignment thereof from the plaintiff, was informed by plaintiff that he had pledged the stock as security for the indebtedness to the grocer and had never received any notice of sale thereof". This clearly appears by other findings and by the refusal of the court to make findings requested by the appellants. The court refused to find, as requested by appellants, that neither the defendant Clark nor his brother had “ knowledge or notice of the circumstances under which ” Thomas obtained the certificate of stock, and marked the finding “ Bef used, except as already found.” The court also refused to find, as requested by the appellants, that Burgess purchased the stock in good faith and sold it to Clark in good faith, believing that he had right and title thereto; and also refused to find, as requested by them, that the defendant Clark purchased the stock in good faith, believing that Burgess had title thereto and the right to dispose thereof. There is no express finding that the appearance of the certificate of stock was such as to put the defendant Clark upon inquiry and that he is chargeable with the lcnowh edge which reasonable inquiry would have revealed. The evidence, however, fairly warrants, if it does not require, such a finding; and if necessary for the purpose of sustaining the judgment, the fact must be assumed to have been found. The court did find that the plaintiff delivered the certificate to Thomas as the agent of Bennett, as security for the indebtedness, but that it was not assigned and that tifie did not pass. This finding is sustained by evidence, and in the absence of evidence and a finding of estoppel, it is fatal to the claim of title made by the defendant Clark. In. the absence of some element of estoppel, no title can be acquired to personal property, other than negotiable instruments, as against the true owner. *504(Mohawk Nat. Bank v. Schenectady Bank, 78 Hun, 90 ; affd., 151 N. Y. 665 ; Ballard v. Burgett, 40 id. 314.) Certificates of stock have only been given the attributes of negotiability to a limited extent. (Knox v. Eden Musee Co., 148 N. Y. 441; Driscoll v. West Bradley C. M. Co., 59 id. 96 ; Weaver v. Barden, 49 id. 286.)
The learned counsel for the appellants contends that in view of the allegation of the complaint to that effect that the plaintiff, on delivering the certificate of stock to Thomas, indorsed it in blank,, which is admitted by the answer — there was no issue with respect to the appearance of the certificate or the effect of the plaintiff’s indorsement. We do not agree with this contention. The allegation of the complaint was strictly true. The plaintiff alleged that he pledged the stock, not that he assigned it. The difficulty is, that the learned counsel for the appellants seeks to construe the allegation into an allegation that the jffaintiff signed the power of attorney or assigned the stock in- Hank. Such is not the allegation, and it should not be so construed. The plaintiff neither. executed the blank power of attorney nor assigned the certificate. He did not part with title. It is, therefore, a case of a pledge of stock, where the pledgee has sold without notice, or where the property pledged is delivered to the agent of the person for whom it is intended, and the agent appropriates the same to his own use by selling it as if it were his own, and is thus guilty of larceny, in neither of which cases does the jmrchaser get a good title as against the true owner. (Treadwell v. Clark, supra; Cook Corp. [4th ed.] § 472; Jones Pledges [2d ed.], §§ 581, 725 ; Knox v. Eden Musee Co., 148 N. Y. 441; Marden v. Dorthy, 160 id. 41.) From the plaintiff’s standpoint, Thomas was acting as the agent of Bennett and he left the certificate with him in pledge for Bennett. In these circumstances, Bennett had no right to sell the certificate except at public auction, upon personal notice to the plaintiff of the time and place of sale (Content v. Banner, 184 N. Y. 121), and in the event of his inability to give such notice, his remedy was an action to foreclose the lien. (Stearns v. Marsh, 4 Den. 227; Strong v. National Mechanics’ Banking Assn., 45 N. Y. 718.) Although as between the plaintiff and Bennett, Bennett may be responsible to the plaintiff for the sale, yet it appears by the undisputed evidence that *505Bennett did not authorize the sale or have any knowledge thereof, and that Thomas did not account to him for the proceeds. Thomas concedes that he first received the certificate of stock in pledge for Bennett, but he claims that Bennett elected to hold him personally responsible for the account and refused to accept the stock, and that the plaintiff, upon being notified of this fact, made him a present of the certificate. The court in directing the judgment orally from the bench stated in-emphatic terms the incredibility of the story, and the plaintiff’s denial thereof has been accepted by the court in making the decision. With that view of this evidence we agree.
The defendant Clark, therefore, is in the position of being in possession of property that rightfully belongs to the plaintiff and whichhas been wrongfully appropriated and converted. He attempts to show title by contending that the plaintiff, in placing liis name in the blank in the second line of the power of attorney, intended to execute the power of attorney and assign the stock, and he cites cases holding that in certain circumstances, where the intention to execute a contract was manifest, it is immaterial upon what part of it the signature is placed. That doctrine does not aid him, because, while it would have been competent for him to have shown in support of his title that the plaintiff by thus indorsing his name in the blank power of attorney intended to assign the stock, such is not the presumption to be gleaned from the appearance of the document, which is all that the defendant Clark acted upon, without extrinsic evidence. Perhaps the brother of the defendant Clark did not realize the legal insufficiency of the signature as an assignment of this stock, but the latter knew the necessity of a formal assignment, as shown by his telegram to .his brother, and he discovered that it was lacking instantly upon inspecting the certificate and proceeded to obtain formal assignments, manifesting an intention to hold Burgess if it would not be given, and taking some steps with respect to putting that intention into effect, as appears by the letter from Burgess to the plaintiff on the 2d day of September, 1893. It does not even appear that the defendant Clark or his brother was familiar with the signature of the plaintiff or knew the indorsement of his name was in his handwriting; and even if they did, it merely indicated that he at one time started to fill out the blank power of attorney or assignment, but that he did not complete it and for some *506reason abandoned the intention of doing so. The certificate merely showed the plaintiff's name inserted in the blank as follows: “ Know ALL Men By These Presents that .................... George A. Treadwell do. hereby appoint.....................................” The defendant Clark, therefore, was not justified in relying upon the certificate as an assignment thereof by Treadwell. The certificate was issued in the plaintiff’s name, and it contained the usual printed blank power of attorney for executing a power of attorney or assignment to an individual or in blank, and it was not executed. The first blank was merely filled in. At the^ end where a space was left for the signature there was the usual witness clause blank. Mo blank, except that in the second line, appeared to have been filled out by or in behalf of the plaintiff. If the plaintiff had executed the assignment by signing in the proper place at the end, leaving the space for the name of the attorney or assignee blank, then, under the well-settled rule, the certificate would become payable to bearer, and if he had then pledged it and the pledgee had sold it without notice, an innocent purchaser for value, relying upon the appearance of the certificate, would obtain good title. (McNeil v. Tenth National Bank, 46 N. Y. 325; Brady v. Mount Morris Bank, 65 App. Div. 212; Fifth Avenue Bank v. F. S. S. & G. S. F. R. R. Co., 137 N. Y. 231; Dudley v. Gould, 6 Hun, 97.) In McNeil v. Tenth National Bank (supra), which is the leading authority upon the subject, Judge Bapallo, in writing the opinion for the court, says: “ Simply intrusting the possession of a chattel to another as depositary, pledgee or other bailee, or even under a conditional executory contract of sale,, is clearly insufficient to preclude the real owner from reclaiming his property, in case of an unauthorized disposition of it, by the person so intrusted. (Ballard v. Burgett, 40 N. Y. R. 314.*) ‘ The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title.’ Per Denio, J.,† in Covill v. Hill (4 Den. 323).
“ But if the owner intrusts to another, not merely the possession *507of the property, but also written evidence, over his own signature,, of title thereto, and of an unconditional power of disposition over it, the case is vastly different. There can be t no occasion for the delivery of such documents unless it is intended that they shall be used either at the pleasure of the depositary or under contingencies to arise. If the conditions upon which this apparent right of control is to be exercised are not expressed on the face of the instrument, but remain in confidence between the owner and the depositary, the case cannot be distinguished in principle from that of an agent who receives secret instructions qualifying or restricting an apparently absolute power.”
There was nothing on the face of the certificate or in the indorsement by which the plaintiff should be deemed estopped from asserting his title. Burgess had possession, but not title. The plaintiff intended to part with possession and he may have intended to assign with a view to clothing the pledgee with authority to enforce the pledge, but he did not on the instrument do so. He clothed no one with the indicia of title. And all purchasers were put upon inquiry. Even the maker of a promissory note which has been wrongfully or fraudulently diverted may successfully -defend against a purchaser receiving it under circumstances- such as would put a reasonable man upon inquiry. (Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191.) Plaintiff having shown tliat the stock was stolen or converted, the burden should rest upon the defendant to show that he was a Iona fide holder for value which, in these circumstances, would, in effect, require proof of the existence of facts constituting an estoppel to relieve him of notice or of knowledge of the facts that a reasonable inquiry would have disclosed. (See Simpson v. Del Hoyo, 94 N. Y. 189.)
As already observed, the defendant Clark might have shown, if he could, that the plaintiff’s indorsement was intended as an absolute assignment, but he could not rely upon the certificate and indorsement alone as proof of that. If he had investigated before purchasing with a view to obtaining that evidence it is probable that he would have promptly discovered the true facts, as he did upon applying to the plaintiff for a further assignment. He is not, therefore, in a position to invoke the application of the rule of the McNeil Case {supra).
*508There was no specific discussion on the question of the waiver of the plaintiff’s right to redeem the stock in our former opinion, but the point is fully covered by the discussion of the claim made by appellants that the right to maintain the action has been lost by laches. The evidence on the part of the plaintiff bearing upon that issue is substantially the same as before. It is now controverted in some respects, thus presenting a question of fact which has been decided adversely to the appellants.
The appellants also contend that the court erred in deciding that in the event of the failure of the plaintiff to recover the stock he is entitled to its value at the time of the trial. They claim that he should be limited to a recovery of its value at the time he demanded it of Clark, for the reason that he failed to tender the amount Clark paid therefor. It appears, however, that Clark declined to deliver the stock and manifested an intention to contest plaintiff’s right to a recovery. This would constitute a waiver of a tender, even if a tender to him were necessary. Moreover, a tender to Clark was unnecessary. The plaintiff’s right to redeem does not depend upon the consideration paid by Clark or whether Clark should be reimbursed therefor. The tender must be made to the pledgee or his representatives. Even though Clark were entitled to be reimbursed that would not necessitate a tender before trial in an equity suit. Clark had notice that the plaintiff demanded the stock, and if he wished to be relieved of the liability of holding it while it might increase or decrease in value,^ he should have delivered it in accordance with the demand. We held on the former appeal that the plaintiff is entitled to recover the stock, less the amount for which it was pledged, and the court upon the trial has liberally allowed him to be reimbursed for the amount expended, together with interest thereon. It would be a singular judguneut that would decree to the plaintiff the' right to recover property worth upwards of $30,000 and leave it optional with the defendants whether to deliver the stock or to pay its value at a remote past period which, in this case, appears to have been about $300. If he has a right to the stock, it must follow that he is either entitled to the stock or its value at the time when his inability to recover possession is ascertained.
The exceptions taken upon the trial and to the findings and the *509refusals of tlie court to find have been examined, and we think they present no reversible error.
It follows, therefore, that the judgment and order should be affirmed, with costs.
O’Brien, P. J., Patterson, McLaughlin and Houghton JJ., concurred.
Judgment and order affirmed, with costs. Order filed.
Sic.
40 FT. Y. 314.— [Rep.
Broksou, Ch. J. — [Rep.