It is undisputed that the plaintiff was the owner of ten shares of United States Steel; that his name appeared as owner on the face of the certificate; that the certificate was in the possession of a broker named Kline, either as a pledge or for safekeeping; that Kline, without notice to plaintiff, transmitted it to his correspondents, the defendants, for sale; that the defendants sold it and have the proceeds of sale on hand. The title to the certificate was always in the plaintiff. No one had the right to meddle with that title. Had Kline sold without notice he would have been guilty of a conversion. (Markham v. Jaudon, 41 N. Y. 235 ;Gruman v. Smith, 81 id. 25; Content v. Banner, 184 id. 121.) How then could a greater right have come to the defendants? Certainly not through the authority of Kline. He could not authorize the doing of that which he could not do himself. Certainly not because possession alone had been in Kline. Any inference to be drawn therefrom was negatived by the certificate which proclaimed the plaintiff to be owner. The possession of Kline, accompanied by a transfer in blank signed by the *301plaintiff, would alone have justified the defendants in making the sale. Even then they would have interfered with the legal title of the plaintiff and have converted his certificate. The plaintiff would merely have been estopped from making that claim through his act in placing a certificate indorsed in blank in the hands of Kline, thereby making Kline the apparent owner. (McNeil v. Tenth National Bank, 46 N. Y. 325.) The burden of proving the estoppel was clearly upon the defendants. They introduced no evidence to show" that the certificate was indorsed in blank by the plaintiff. Such an indorsement was apparently upon the certificate. The plaintiff swore he-never indorsed it. The witness to the signature swore that the plaintiff never signed before him.. The name of the plaintiff under the indorsement alone proved nothing. It was for the defendants to have proved that this name was signed by the plaintiff. Having failed to do so the plaintiff was entitled to a recovery. Doubtless if the action had been against Kline he might have pleaded and proven an indebtedness on the part of the plaintiff to him in reduction or mitigation of damages. These defendants, however, are strangers to the plaintiff. They could not prove in their own defense the debt owing to Kline. Kline owes them nothing. If they offset the claim, owned by him against the damages to the plaintiff there is no reason why Kline could not then sue the plaintiff and have a full recovery. In any event there is no proof as to the extent of the indebtedness of the plaintiff. He was not obliged to tender the amount of the debt before suit. (Lewis v. Graham, 4 Abb. Pr. 106; Wilson v. Little, 2 N. Y. 443.) It must clearly follow that he was not obliged to establish the amount of the claim against himself. The suggestion that the conversion was merely of his interest in the property, which was the legal title less a debt held against it, is ingenious but unsound. (Hanmer v. Wilsey, 17 Wend. 91.) The evidence established without contradiction a conversion of the stock of the plaintiff. He was, therefore, entitled to a direction of a verdict for the'value thereof.
I favor affirmance.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.