Campbell v. Luebben

• Decision Date: 21 October 1911
• Docket Number: 17,176
• Parties: GEORGE W. CAMPBELL, APPELLEE, v. MELCHOIR L. LUEBBEN, APPELLANT
• Court: Nebraska Supreme Court

132 N.W. 932

90 Neb. 95

GEORGE W. CAMPBELL, APPELLEE, v. MELCHOIR L. LUEBBEN, APPELLANT

No. 17,176

Supreme Court of Nebraska

October 21, 1911

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

Mockett & Peterson, for appellant.

Stewart Williams & Brown, contra.

BARNES J. SEDGWICK, J., concurs in the conclusion.

OPINION

BARNES, J.

This case is before us on a second appeal. The law of the case was settled by the judgment on the former appeal. Campbell v. Luebben, 88 Neb. 214, 129 N.W. 437. In the case of Trenholm v. Kloepper, 88 Neb. 236, 129 N.W. 436, it was said: "If an officer of a corporation orally promises a prospective purchaser of the corporate stock to repay the purchase price at any time and the purchaser acts upon the promise, the agreement is an original contract, and is not within the statute of frauds. The promisor does not thereby agree to answer for the debt, default or misdoings of another person, nor does he agree to purchase goods, wares, merchandise or things in action." We are of opinion that this rule should be applied to the facts in this case.

It appears on the second trial in the district court the issues were recast, and it was alleged in the plaintiff's amended petition, in substance, that on May 23, 1905, plaintiff purchased, through the defendant, 15 shares of the Luebben Baler Company of the par value of $ 1,500, and received therefor stock certificate No. 14 for $ 1,000, and stock certificate No. 15 for $ 500; that on or about the 15th day of September, 1905, defendant orally promised and agreed with plaintiff that, if plaintiff would purchase other and additional stock of the Luebben Baler Company through defendant, he (the defendant), in consideration of such purchase and payment of money therefor, would repay to plaintiff the amount that plaintiff had paid for all such stock at any time plaintiff became dissatisfied, for any reason, with such investment, and desired the money he had paid therefor returned; that, in pursuance of said promise and agreement, plaintiff purchased through defendant at different times further and additional shares of stock of the Luebben Baler Company at the price of $ 100 a share, to wit: 30 shares September 25, 1905, certificate No. 17, $ 3,000, and 9 shares October 19, 1905, certificate No. 18, $ 900, and 10 shares December 16, 1905, certificate No. 31, $ 1,000, total $ 4,900; and it was alleged that the plaintiff took and paid for such stock because of said agreement with the defendant, and relying upon said promise and agreement, and that he would not have purchased said stock but for the agreement. It was alleged that the plaintiff became dissatisfied with the investment and desired the repayment of his money so paid by him to defendant, and, on or about the 1st day of January, 1907, offered to return the shares of stock to defendant, and demanded that he repay plaintiff the sum of $ 6,400 so paid by plaintiff as aforesaid; but defendant refused to comply with his said contract, and neglected to pay plaintiff said sum or any part thereof. The petition concluded with a prayer for judgment for the sum of $ 6,400, with interest thereon from January 1, 1907, and costs of suit.

Defendant's answer was a denial of each and every allegation contained in the petition, except such as were specifically admitted. It was admitted that plaintiff purchased 15 shares of the Luebben Baler Company stock on the 23d day of May, 1905. It was further stated in the answer that plaintiff purchased of the defendant 30 shares of stock on the 25th day of September, 1905, as evidenced by certificate No. 17 for $ 3,000, and that attached to said certificate was a written agreement of the Luebben Baler Company to repurchase said shares of stock when there should have been manufactured and sold 300 of the machines, which the company were to thereafter manufacture and sell. It was also stated that the plaintiff purchased of the Luebben Baler Company 9 shares of stock on the 19th day of October, 1905, as evidenced by certificate No. 18, and that a similar written agreement was attached to said certificate as that above described. It was further stated in the answer that plaintiff purchased of the Luebben Baler Company 10 shares of stock on the 16th day of December, 1905, as evidenced by certificate No. 31, and that a similar written agreement was attached to said certificate; that the total amount of stock so purchased was 54 shares, and the purchase price thereof $ 5,400.

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