Janeway v. Vandeventer

• Decision Date: 21 May 1935
• Docket Number: 23661.
• Citation: 45 P.2d 79,172 Okla. 379,1935 OK 569
• Parties: JANEWAY et al. v. VANDEVENTER.
• Court: Oklahoma Supreme Court

45 P.2d 79

172 Okla. 379, 1935 OK 569

JANEWAY et al. v. VANDEVENTER.

No. 23661.

Supreme Court of Oklahoma

May 21, 1935

Syllabus by the Court.

1. Where a contract made in connection with the sale of corporate stock grants the purchaser an option to resell the stock to the corporation in the event he becomes dissatisfied at a specified time, the purchaser may exercise his option in accordance with the contract by giving notice of dissatisfaction within the time specified. In the absence of a provision in the contract specifying the time of performance of the repurchase agreement or requiring a tender in order to exercise the option, such tender, if necessary may be made within a reasonable time after the expiration of the time for exercising the option.

2. Where a tender is necessary to the establishment of any right against another party, it is waived or becomes unnecessary when it appears that such tender, if made, would have been refused.

3. The principal obligor or a receiver for the principal obligor is not a necessary party to an action against guarantors.

Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph Judge.

Action by F. L. Vandeventer against George M. Janeway, receiver of the Jansen-Jenkins, Inc., and others on a contract, to recover a money judgment in the sum of $2,200. Judgment for plaintiff, and defendants appeal.

Affirmed.

Paul D Busby and Geo. B. Schwabe, both of Tulsa, for plaintiffs in error.

Silverman Rosenstein & Fist and R. E. Rosenstein, all of Tulsa, for defendant in error.

BUSBY Justice.

This action was commenced in the court of common pleas of Tulsa county on the 3d day of July, 1930, by F. L. Vandeventer, as plaintiff, against George M. Janeway, receiver, Jansen-Jenkins, Inc., a corporation, C. H. Terwilliger, L. D. Jenkins, A. Jansen, and J. C. Hart, as defendants. The plaintiff sought to recover from the defendants the principal sum of $2,200, together with interest thereon from the 1st day of March, 1930, at the rate of 6 per cent. per annum.

George M. Janeway was the receiver for Jansen-Jenkins, Inc., having been appointed in that capacity by the federal court for the Northern district of Oklahoma. Shortly after this action was filed, it was removed to the federal court, wherein, on motion to remand presented by the plaintiff, the cause was returned to the court of common pleas. When the cause was called for trial in the court of common pleas, the plaintiff dismissed his action without prejudice as to the receiver and proceeded to trial against the remaining defendants. The cause was tried to a jury and resulted in a verdict and judgment in favor of the plaintiff for the amount sued for.

The defendant A. Jansen was adjudged a bankrupt while this case was pending in the court below.

The case is brought to this court on appeal by the defendants Jansen-Jenkins, Inc., C. H. Terwilliger, L. D. Jenkins, and J. C. Hart who appear herein as plaintiffs in error. For the sake of convenience, we shall continue to refer to the parties in the order of their appearance in the court below.

On the 1st day of March, 1929, the plaintiff, F. L. Vandeventer, acquired from Jansen-Jenkins, Inc., which was then a solvent corporation, 22 shares of stock of said corporation of the par value of $2,200. At the same time and as a part of the same transaction, Jansen-Jenkins, Inc., executed its written contract whereby it agreed, in substance, to repurchase the stock from the plaintiff within one year from the date of the contract at the option of the plaintiff if he should become dissatisfied. At the same time the defendants C. H. Terwilliger, L. D. Jenkins, A. Jansen, and J. C. Hart executed a separate contract of guaranty to secure the performance of the repurchase contract. These instruments were in writing and read as follows:

"Whereas, F. L. Vandeventer, of Tulsa, Oklahoma, has purchased Twenty-two (22) shares of the stock of Jansen-Jenkins, Inc. of the par value of Two Thousand Two Hundred ($2,200.00) Dollars, as evidenced by certificate No. 9, issued on the 1st day of March, 1929;

Now, therefore, be it understood, that the undersigned hereby binds itself to return to the said F. L. Vandeventer, the par value of said stock one year from the date hereof, if said F. L. Vandeventer be not satisfied with the aforesaid investment.

Dated at Tulsa, Oklahoma, this 1st day of March, 1929. Jansen-Jenkins, Inc., By C. H. Terwilliger, (Signed) President. Attest: L. D. Jenkins (Signed) Secretary.

We, the undersigned, in consideration of the sum of One ($1.00) Dollar, and other valuable considerations, in hand paid, the receipt whereof is hereby acknowledged, do hereby guarantee the above and foregoing agreement on the part of Jansen-Jenkins, Inc.

Dated at Tulsa, Oklahoma, this 1st day of March, 1929. C. H. Terwilliger, (Signed) L. D. Jenkins (Signed) A. Jansen (Signed) J. C. Hart (Signed)"

According to the testimony of plaintiff, he became dissatisfied with the management of the company and the stock he had acquired before the 1st day of March, 1930, and expressed his dissatisfaction in conversations had with officers of the defendant corporation. On March 1, 1930, which was exactly one year after the date the contracts above referred to were executed, the plaintiff, through his brother, orally and in a formal manner advised the company of his dissatisfaction and demanded that the company pay to him the par value of his stock in accordance with the contract.

Thereafter and on or about the 20th day of March, he prepared a formal written notice reciting therein the demand made on the 1st day of March and requesting and demanding that the company and other defendants in this case pay him the sum specified in the contracts in accordance with the terms thereof. This written demand was transmitted to each of the defendants by registered mail.

According to the testimony introduced by the plaintiff, the response of the defendant corporation, speaking through its president, to the oral demand made on March 1st, was, "It will be worked out."

From the testimony of the defendant C. H. Terwilliger, who was also the president of the defendant corporation, it appears that at the time this oral demand was made the defendant corporation was in financial difficulties and was undertaking to negotiate some character of a loan which could only be made in the event that Mr. Terwilliger, as an individual would secure the payment thereof. It also appears in this connection that Mr. Terwilliger advised the plaintiff at the time of the demand of this financial difficulty and negotiation. Later and on or about the 5th day of April, 1930, the receivership proceeding was commenced in the federal court for the Northern district of...