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BERKOWITZ v. MAYFLOWER SECURITIES (03/25/74)

decided: March 25, 1974.

BERKOWITZ, APPELLANT,
v.
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.

COUNSEL

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.

Author: Eagen

[ 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, ...


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