On defendant's motion for summary judgment.
This matter is before me on defendant's motion for summary judgment in a replevin action.
Plaintiff sues for the recovery of certain stock certificates (listed in the schedule attached to the complaint), or for the value thereof because of their alleged unlawful detention.
The pleadings and exhibits indicate that on May 9, 1949, plaintiff borrowed $12,000 from defendant and delivered to defendant his promissory note, due three months after date, and also deposited with defendant the stock certificates itemized in the schedule as collateral security for the loan. A copy of the promissory note is annexed to the answer.
The defendant contends that it served notice upon plaintiff of a depreciation in the market value of the stock which had been posted as security for the loan. It maintains that such notice was served upon plaintiff on May 27, June 2 and June 4, all in 1949, and in connection with such notices, it demanded that plaintiff either reduce the loan by $2,000 or post other securities having a market value of $3,000. Defendant further charges that plaintiff failed to comply with such demand, whereupon it sold the stock at the market price on June 7, 1949, satisfied the $12,000 loan from the proceeds and remitted the balance of $2,300 obtained at the sale to plaintiff. Plaintiff accepted the check tendered by defendant for such balance.
Plaintiff denies receiving any such notice. He charges that defendant on June 7, 1949, and from that time forward has wrongfully taken and detained said certificates of stock. Plaintiff further charges repeated demands upon defendant for the return to him of said stock certificates but without result. He further alleges that on October 16, 1950, he offered defendant the amount of said loan with interest and demanded the return of the described stock certificates but defendant persisted in its refusal to comply.
It should be noted that plaintiff originally commenced an action in conversion. At the pretrial conference he moved to amend his complaint to add a count in replevin. This motion was denied. Shortly thereafter, plaintiff voluntarily dismissed the conversion action and instituted the present suit in replevin. Defendant earlier made a motion for summary judgment in the present suit. This motion was denied without prejudice, and leave was granted to renew the motion at the pretrial conference.
Defendant now moves for summary judgment on these three grounds:
1. Replevin cannot lie where the defendant has neither actual or constructive possession of the chattels at the time of the issuance of the writ.
2. Plaintiff has waived his right to bring a suit in replevin having formerly ...