decided: March 25, 1974.
MAYFLOWER SECURITIES, INC.
Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, No. 2120, in case of Donald Berkowitz v. Mayflower Securities, Inc.
Donald M. Bowman, with him Gold, Bowman and Korman, for appellant.
Marvin Katz, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy dissents. Dissenting Opinion by Mr. Justice Roberts.
[ 455 Pa. Page 532]
In this action in equity, the chancellor entered an adjudication and decree nisi in favor of the defendant. Plaintiff's exceptions were dismissed, and this appeal followed.
This is the factual background disclosed by the record.
The defendant, a stock brokerage firm in New York City, was the sole underwriter of an original issue of 3i Company -- Information Interscience Incorporated [3i Company] common stock.*fn1 The plaintiff was recommended to the defendant by the president of 3i Company as a subscriber for 100 shares. On February 26, 1968, the defendant caused to be prepared a confirmation for the purchase of 100 shares of common stock of 3i Company in the plaintiff's name at the offering price of $5 per share. This confirmation was mailed to the plaintiff on the same date at his home address in Jenkintown, Pennsylvania, showing a trade date of
[ 455 Pa. Page 533]
February 26, 1968, and a settlement date of March 4, 1968. On March 1st, the defendant had a certificate for 100 shares of the stock of 3i Company issued in the plaintiff's name. On March 7th, not having received payment for the stock, the defendant cancelled the plaintiff's order. On that date the stock was trading between $7.50 and $8 per share. Thereafter, the defendant endorsed the plaintiff's name on the back of the stock certificate issued in his name and guaranteed the signature was authentic. On March 27th, the defendant transferred the certificate to its nominee, Flow & Company, at no gain to itself. On October 10th, the plaintiff tendered payment for the stock to the defendant at its initial offering price and demanded delivery. The defendant rejected the tender. This action was then instituted to have the defendant declared a constructive trustee and directed to account to the plaintiff for the 100 shares of stock.*fn2
At trial, the plaintiff testified he never received the confirmation notice mailed by the defendant on February 26, 1968, or any other communication indicating that the order for the purchase of the stock in his name had been fulfilled.*fn3 However, the chancellor
[ 455 Pa. Page 534]
found as a fact that written confirmation was mailed by the defendant to the plaintiff at his home address with the settlement date specifically stated to be March 4, 1968. This finding will not be disturbed on appeal, since there is adequate evidence in the record to sustain it. See Van Products Company v. General Welding and Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965). Furthermore, finding this confirmation was mailed creates a rebuttable presumption the confirmation was in fact received. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963), and Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406 (1959). Also, a denial of receipt is not sufficient, in itself, to rebut this presumption. See Meierdierck v. Miller, supra.
Plaintiff contends the defendant failed to exercise a reasonable effort to protect his interests and thus violated its fiduciary duty. He argues that, at the very least, he was entitled to some communication notifying him of the pending cancellation of his order for the stock. This position is appealing, but is not supported by the law.
A subscription for shares of stock in an existing corporation is simply a contract of purchase and sale. Bole v. Fulton, 233 Pa. 609, 82 A. 947 (1912). Accord, Schwartz v. Manufacturer's Casualty Insurance Company, 335 Pa. 130, 6 A.2d 299 (1939), and Bender v. Wiggins, 323 Pa. 182, 185 A. 730 (1936).*fn4 Thus, we look at the present problem in simple contract terms, and, so viewed, it is apparent the plaintiff's failure to pay for the stock constituted a material breach of the
[ 455 Pa. Page 535]
contract which relieved the defendant from any duty thereunder. See 6 Williston on Contracts § 846 (3d Ed. 1962), and Restatement of Contracts, § 275 (1933). Moreover, if we view the situation as constituting a completed contract, that is as an offer by the plaintiff, which was accepted by the defendant, the contract became void as to the plaintiff by operation of law under Federal Reserve Regulations*fn5 by reason of plaintiff's failure to pay for the stock on or before the settlement date. See Pearlstein v. Scudder & German, 429 F. 2d 1136 (2d Cir. 1970); Greater Iowa Corporation v. McLendon, 378 F. 2d 783 (8th Cir. 1967); and, Royal Air Properties, Inc. v. Smith, 312 F. 2d 210 (9th Cir. 1962).
Decree affirmed. Each party to pay own costs.
[ 455 Pa. Page 536]
Dissenting Opinion By Mr. Justice Roberts:
At a moment in our jurisprudence when society expects the highest degree of integrity of those holding positions of public trust and confidence,*fn1 it is shocking indeed to witness a licensed securities dealer abuse its position of trust. In my view, this Court unwisely chooses to approve the lawless conduct of Mayflower Securities. I dissent from the majority's failure to condemn Mayflower's resort to self-help.
The pertinent facts are undisputed. Mayflower, the sole underwriter of a new issue of 3i Company, received from appellant an indication of interest to purchase 100 shares. Shortly after February 26, 1968, the effective date of the distribution, a confirmation for the purchase of 100 shares and a prospectus was sent by ordinary mail to appellant. On March 1, 1968, Mayflower opened an account in appellant's name and issued a stock certificate for 100 shares, registered in his name. Not hearing from appellant by March 7, and relying on the proscription of regulation T,*fn2 appellee
[ 455 Pa. Page 537]
transferred the 100 shares to its nominee, Flow & Company. To do so appellee forged appellant's name.
Having opened an account in appellant's name and having registered securities in his name, appellee in order to transfer those securities could not resort to self-help, as it did. That appellant failed, according to appellee, to respond to a letter sent by ordinary mail did not justify appellee's forgery of his name. No federal regulation, regardless of its significance, permits a licensed securities dealer in order to avoid the regulation's impact to forge a customer's endorsement on a stock certificate. Mayflower had before it other options, legal options, which it could have used to protect its rights. It chose not to act within the legal process, but to resort to self-help.
The forging of a customer's endorsement, especially by a fiduciary, is to be condemned. Recent developments in the regulation of securities dealers and other market participants "all point to the conclusion that the broker-dealer community will be forced to live up to the professional image which it has tried to create." Mundheim, Professional Responsibilities of Broker-Dealers: The Suitability Doctrine, 1965 Duke L.J. 445, 479. Appellee's forgery not only contravened the professional image of a licensed securities dealer, but was a clear violation of its fiduciary duty and its responsibility to engage in fair and equitable trading practices.*fn3
The majority concedes that between Mayflower and appellant there existed a fiduciary relationship. See Butcher v. Newburger, 318 Pa. 547, 179 A. 240 (1935). The fact of forgery is also plain. Yet the majority, although sitting in review of a court of equity, chooses
[ 455 Pa. Page 538]
to deny appellant relief and to vindicate the fiduciary's conduct. In the past this Court has never been reluctant to grant relief to a party harmed by a forgery. E.g., Austen v. Marzolf, 294 Pa. 226, 143 A. 908 (1928);*fn4 Walker v. Pennsylvania Co. for Insurances on Lives & Granting Annuities, 263 Pa. 480, 106 A. 795 (1919);*fn5 Cornwell v. J. W. Sparks & Co., 248 Pa. 109, 93 A. 868 (1915).*fn6
[ 455 Pa. Page 539]
There can be little doubt that equity may decree the cancellation of a forged written instrument. Setlock v. Sutila, 444 Pa. 552, 554, 282 A.2d 380, 381 (1971); Fleming's Estate, 265 Pa. 399, 109 A. 265 (1919);*fn7 Flitcraft v. Commonwealth Title Insurance & Trust Co., 211 Pa. 114, 60 A. 577 (1905) (per curiam); Shisler v. Vandike, 92 Pa. 447 (1880); Tonkin v. Tonkin, 172 Pa. Superior Ct. 552, 561, 94 A.2d 192, 196 (1953); Heinrich Chemical Co. v. Ingram, 104 Pa. Superior Ct. 257, 260, 159 A. 77, 78 (1932) ("a forged contract amounts to nothing"). See generally D. Dobbs, Handbook on the Law of Remedies § 9.6, at 645 (1973). This being so, equity certainly has the power to undo the effect of a transfer of securities brought about by forgery.
Relying on the inherent power of an equity court to redress a wrong and not allow a party to profit by his own wrongdoing, I would reverse the decree of the Court of Common Pleas of Philadelphia.