Grotte v. Rachman

• Decision Date: 23 January 1926
• Docket Number: 23662
• Citation: 207 N.W. 204,114 Neb. 284
• Parties: BOZENA GROTTE, APPELLEE, v. HARRY RACHMAN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

207 N.W. 204

114 Neb. 284

BOZENA GROTTE, APPELLEE, v. HARRY RACHMAN ET AL., APPELLANTS

No. 23662

Supreme Court of Nebraska

January 23, 1926

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

Gaines Van Orsdel & Gaines and Eugene N. Blazer, for appellants.

Benjamin S. Baker and James E. Rait, contra.

Heard before MORRISSEY, C. J., ROSE, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

THOMPSON, J.

This action was commenced in the district court for Douglas county to recover $ 11,000 with interest at 7 per cent. per annum from June 10, 1919. Plaintiff contends that on or about such date she was the owner and holder of stock in the Burgess Nash Company, a corporation of Douglas county, of the par value of $ 11,000; that she and defendants were, and had been for some years, close personal friends; that she was without business knowledge, and relied solely on the representations of defendants; that they promised her that, if she would turn the Burgess Nash stock over to them and accept in lieu thereof stock in Stroud & Company of the same face value, of which company defendants were acting as agents for the sale of stock, they would, at any time that plaintiff needed the money, upon demand being made, repurchase from her the Stroud stock at its face value, with 7 per cent. interest from June 10, 1919; that, relying upon such promise, she delivered to them the Burgess Nash stock and received stock in Stroud & Company of the same face value; that thereafter she offered, and now offers, to return the Stroud stock, and has demanded, and now demands, the $ 11,000 with interest, as agreed, but defendants refuse to accept the stock and pay her.

To this, defendants interpose, quoting from their brief: "(1) A general denial. (2) An oral agreement to repurchase the stock in controversy would be void under the statute of frauds. (3) The plaintiff made no request or demand of the defendants to repurchase the stock until the date of filing the petition, to wit, January 16, 1923, and hence it is too late for her now to assert any claim against defendants for the repurchase of the stock in controversy." Plaintiff denied the allegations, above quoted, in her reply.

Trial was had to a jury, which rendered a verdict in favor of plaintiff for the full amount claimed, less dividends paid, and interest thereon from date of payment to date of verdict. Judgment was entered accordingly, to reverse which defendants appeal, challenging such judgment for the following reasons: The court erred in giving instruction No. 4 on its own motion; the court erred in overruling defendants' motion for an instructed verdict.

Defendants complain of instruction No. 4 for the reason that, as the Burgess Nash stock was sold by them for $ 10,172.80, the jury should have been told that this sum, and not $ 11,000, the face value thereof, should form the basis of her recovery, if any. This conclusion is not warranted by the facts. Plaintiff did not sell this stock but turned it over to defendants at its face value for a like amount, face value, of the Stroud & Company stock, under an agreement that defendants would pay her, when needed by her, the face value of such stock with interest.

The jury having passed on the questions of fact involved favorable to plaintiff, and there being sufficient competent evidence to support their findings, we are called upon to determine but two other questions, to wit: Was the oral agreement to repurchase the Stroud stock void under our statute of frauds? If not, did plaintiff lose her right by failing to make demand for such repurchase for three and a half years?

Taking up these questions in their order, it will be seen that such promise to purchase the Stroud stock from plaintiff entered into and became a potent factor in the making of the contract, and was an inseparable part of the consideration moving from defendants to plaintiff. Plaintiff paid full consideration at the time. As to her the contract was complete. Thus, under our holdings in Fremont Carriage Mfg. Co. v. Thomsen, 65 Neb. 370, 91 N.W. 376, and Griffin v. Bankers' Realty Investment Co., 105 Neb. 419, 181 N.W. 169, the transaction was not within the statute of frauds. In the latter case we adopted the rule announced in Hankwitz v. Barrett, 128 N.W. 430 (143 Wis. 639): "The sale and delivery of stock and payment of the price, under a contract whereby the seller agreed to repurchase at the buyer's option, constituted an entire transaction which was sufficiently performed to take it out of the statute of frauds, relating to contracts for the sale of goods, though the agreement to repurchase was oral." This rule was followed in Stratbucker v. Bankers Realty Investment Co., 107 Neb. 194, 185 N.W. 271.

Then, it will be further noticed that this contract does not limit the time within which plaintiff might make this demand; therefore, it might be within one year, and thus it would come within our holding in Carter White Lead Co. v. Kinlin, 47 Neb. 409, 66 N.W. 536:

"A contract not to be performed within one year, as meant by the statute of frauds, is one which by its terms cannot be performed within one year. A contract is not within the statute merely because it may or probably will not be performed within a year."

As to the second issue, defendants urge by way of their brief, as well as in oral argument, that, as the contract fixed no definite date within which plaintiff might demand repurchase by them, she had but a reasonable time in which to do so that as she made no demand for three and a half years after she purchased the stock, she did not act within a reasonable time, and for that reason must fail in this...