The action is brought for the conversion of the original certificate of stock owned by the firm of Moore Schley, and the plaintiff at the close of its evidence obtained leave to amend the complaint to make clear that the action was not for conversion of the new certificate issued to the defendants. Neither pleadings nor proof would support a judgment for the conversion of the new certificate issued to the defendant brokers through the mistake of the corporate transfer agents. At the time the defendants converted the original certificate it no longer embodied or evidenced the rights of any stockholder and even a purchaser in good faith acquired no rights to any stock. Neither the conversion of the original stock certificate nor the issuance to the defendant brokers of a new certificate deprived Moore Schley of their title to the corporate stock, or to the substituted certificate which even before the conversion by the defendant brokers had been issued to Moore Schley. Moore Schley were indirectly damaged by the issuance of the new certificate to the defendant brokers because they had chosen to give to the corporation as a condition for the issuance of a new certificate to them, a bond of indemnity against damages caused by "the issuance of a duplicate or duplicates in lieu (of the stolen certificate) * * * whether or not caused by, based upon or arising out of inadvertence, accident, oversight or neglect on the part of the obligees or their respective officers, agents, clerks and employees." Since, however, no act done by the defendant brokers *Page 25 with respect to the stolen certificate in any wise affected the right or title of Moore Schley to the certificate of stock which had been issued to them in place of the old certificate, Moore Schley were damaged by their own act in giving the indemnity bond but not by the defendant brokers' technical conversion of the original certificate. The judgment should, therefore, be affirmed.
POUND, Ch. J., CRANE, O'BRIEN and CROUCH, JJ., concur with HUBBS, J.; LEHMAN, J., dissents in opinion, in which KELLOGG, J., concurs.
Judgment accordingly.