Cooper v. Bane

• Decision Date: 27 March 1923
• Docket Number: 22231
• Citation: 193 N.W. 97,110 Neb. 74
• Parties: CHARLES C. COOPER ET AL., APPELLEES, v. H. R. BANE ET AL., APPELLANTS
• Court: Nebraska Supreme Court

193 N.W. 97

110 Neb. 74

CHARLES C. COOPER ET AL., APPELLEES, v. H. R. BANE ET AL., APPELLANTS

No. 22231

Supreme Court of Nebraska

March 27, 1923

APPEAL from the district court for Blaine county: BAYARD H. PAINE JUDGE. Affirmed.

AFFIRMED.

Sullivan Squires & Johnson and Hainer & Flansburg, for appellants.

Burkett Wilson, Brown & Wilson, contra.

Heard before MORRISSEY, C. J., GOOD, DAY and ALDRICH, JJ., RAPER and TROUP, District Judges.

OPINION

TROUP, District Judge.

This case arises out of the consolidation of two banks at Dunning, Nebraska. The owners of the selling bank guaranteed its assets, and this suit is upon that guaranty. From a judgment against the guarantors, this appeal is taken.

The petition of the plaintiff, in substance, alleges that on June 1, 1918, the plaintiff entered into a contract with the defendants for the purchase of 100 shares of the capital stock of the Dunning State Bank, of Dunning, Nebraska, which said 100 shares comprises all of the stock issued and outstanding at that time. The contract is in writing and set forth in full in the petition, but we insert only such part thereof as we think needful to a proper consideration of the issues, as follows:

"Second. First parties represent all books, records and accounts of the said Dunning State Bank to be true and correct and agree to adjust any errors that may be found to have existed at the time of the transfer of the above stock to second party. First parties further represent all notes representing bills receivable held by said Dunning State Bank at the time of the transfer to second party of the within stock to be true in amount, genuine as to signature of maker, and guarantee the payment of said notes in the same proportion as the number of shares of stock herein sold bears to the entire capital stock, namely, 100 per cent. It is mutually understood and agreed that second party shall use due diligence in the handling and collection of said bills receivable and the said second party shall have fifteen days after maturity of any note or notes representing bills receivable held by the Dunning State Bank at the time of the transfer of said stock to the second party in which to make collection of any note or notes representing such bills receivable, failing to collect the same within fifteen days after maturity and not wishing to extend or renew such note or notes the second party shall give notice in writing to first parties of his inability to collect such note or notes and first parties shall have thirty days from date of such notice in which to make such note or notes acceptable to second party, failing so to do first parties shall pay to second party in cash the full amount of such note or notes together with accrued interest thereon, and by so doing first parties shall acquire an interest in such note or notes equal to the amount so paid by them."

It was further stipulated in the contract that the notice to defendants of nonpayment of any notes covered by said guaranty, as above provided, shall be sufficient if mailed to A. C. Blanchard at Merriam, Nebraska, and that the contract shall be binding upon the heirs and assigns of all parties thereto.

The petition further alleges that the purchase price of said stock was paid in full, and the same, together with the assets of said bank, including the notes in suit, were delivered to plaintiff; that thereafter the things required by said contract to be kept and performed by the plaintiff were, in all respects, kept and performed; that thereafter the notes in suit, being among those guaranteed by defendants, became due and payable, and, the same remaining unpaid, the defendants were duly notified of the default and payment demanded and same refused by defendants, and prayer for judgment follows.

It appears that about 15 months after plaintiff commenced this suit he sold all his interest in the Home State Bank at Dunning, of which he was president and owning 90 per cent. of its stock, including all interest in the present suit, and removed permanently to the state of California. Thereupon the said Home State Bank filed herein its petition of intervention, wherein it alleges that at all times it was and is the real party in interest in the purchase of the Dunning State Bank stock from defendants, as defendants well knew and understood at the time of entering into the transaction, and that it was agreed by all concerned that the contract therefor should be entered into by said Charles C. Cooper for and on behalf of the intervener herein, Home State Bank, said Cooper being then the president and largest stockholder therein, and that the purpose of said contract was that the assets of said Dunning State Bank were to become the property of said Home State Bank; that immediately upon the completion of the transaction the property of the Dunning State Bank became the property of the Home State Bank, the latter assuming the liabilities of the former, whereupon the former surrendered its charter to the state and became defunct, all of which was well understood and agreed to by defendants; that since said transfer certain notes included within said purchase, aggregating the sum of $ 5,330.53, became due and payable and remained unpaid; that notwithstanding plaintiff and intervener have kept and performed all things required of them under said contract to be kept and performed, and given defendants due notice of the nonpayment of said notes, defendants have failed and refused to pay the same, wherefore the intervener prays judgment.

The defendants, in their joint answer to the petition of intervener, admit the contract in question, but deny that Cooper entered into the same for and on behalf of the intervener; that they transferred said stock to Cooper, and not to intervener, and relied upon him personally because of their knowledge of him as a careful, energetic business man of long experience in the collection of commercial paper; they deny that either plaintiff or intervener used due diligence in any instance to collect the said notes, and deny all other allegations in said petition not otherwise admitted.

From the large volume of evidence taken and the apparently formidable briefs filed, one's first impression is that the record probably presents some very difficult and intricate problems for solution, whereas, in fact, the questions involved are simple and easily determined.

The first complaint of the 16 assigned is that the court erred in overruling defendants' motion to strike the petition of intervention on the ground that it never had a legal standing in this action. Section 8552, Comp. St. 1922, settles this point against the defendants. See, in connection therewith, State v. Farmers State Bank, 103 Neb. 194, 170 N.W. 901, and McConniff v. Van Dusen, 57 Neb. 49, 77 N.W. 348.

The great burden of the defense seems to be that the contract between the contesting parties is that it was one so strictly personal to the plaintiff Cooper, as vendee, that the defendants have a right to demand that the duties to be performed by the vendee under the contract shall be performed by him and him only, and that any other than the plaintiff undertaking to perform the duties required, however faithfully said duties may have been performed in fact, will exonerate the defendants from all obligation to perform their part of the contract; a somewhat anomalous position to take it would seem, in view of the very...