Leadbetter v. Price
| Decision Date | 29 November 1921 |
| Citation | 103 Or. 222,202 P. 104 |
| Parties | LEADBETTER v. PRICE. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Suit by F.W. Leadbetter against O.L. Price, executor. Complaint dismissed, and plaintiff appeals. Affirmed.
See also, 201 P. 428.
This suit is brought by appellant, Leadbetter, against O.L. Price the executor of the last will and testament of H.L. Pittock deceased, to enforce an alleged right, which appellant claims, to purchase all of certain corporate stock belonging to and listed among the assets of the estate of the deceased. Appellant appeals from the decree of the circuit court dismissing his complaint.
L.A Liljeqvist, of Portland (Cake & Cake, of Portland, on the brief), for appellant.
Charles H. Carey and James B. Kerr, both of Portland (D.P. Price, of Portland, on the brief), for respondent.
At the time of his death, January 28, 1919, Pittock owned 4,400 shares of the capital stock of the Crown-Columbia Pulp & Paper Company, now Crown-Columbia Paper Company, and 8,592 shares of the preferred stock of the Crown-Willamette Paper Company. The aforesaid stock was appraised in the inventory of Pittock's estate at $1,045,640. Pittock acquired the stock on and between April 1, 1910, and May 1, 1917, in blocks and at prices as follows:
May 1, 1917. 1,200 shares first preferred stock, of
Crown"Willamette Paper Co., purchased from F.W. Leadbetter, at
$100 per share ..................................................... $120,000
Leadbetter alleges in his complaint and testified as a witness in his own behalf that upon each occasion that Pittock acquired the above-mentioned stock, including dividend stock and purchases direct from the corporation, he (Pittock), at the solicitation of Leadbetter, orally agreed that Leadbetter might purchase or repurchase the stock acquired upon that date, upon the payment to Pittock of the sum of money paid by Pittock therefor, together with interest on such sum at the rate of 6 per cent. per annum to the time Leadbetter should exercise his option, and further that on each occasion after the first, Pittock reiterated and renewed the option or options previously given. That Pittock, on April 1, 1910, gave Leadbetter an oral option to repurchase the stock acquired by Pittock on that date is established by the evidence. The testimony of defendant Price corroborates Leadbetter to the extent that an option to repurchase was given. The latter testified:
At another place in his testimony, Price restated the incident as follows:
Price also testified that Pittock on two occasions between April 1, 1910, and November 9, 1912, mentioned the matter of the option. On the first occasion he asked Price how long Leadbetter would have to exercise his option, and upon being informed that he would have a reasonable time, Pittock inquired what would be a reasonable time in such a case; and on the second occasion, which was about November 9, 1912, Pittock referred to a contract executed by himself and Leadbetter on that day, and observed that to his mind Leadbetter's idea of a reasonable time in such a transaction was two years.
as to those options to purchase stock alleged to have been given after 1910, appellant relies upon his own declaration to prove the same, unaided by detail of corroborating fact or circumstance. the evidence discloses that neither Pittock nor leadbetter ever made any written reference to, or note or memorandum, private or otherwise, of the option agreements in question, or any of them; and that, except the agreement of April 1, 1910, no third person was present at any of the times the option agreements between Pittock and Leadbetter are claimed by the latter to have been made. Leadbetter took no action of any kind while Pittock lived looking to the exercise of any of the rights he is attempting to establish and assert in this suit, and Pittock did not call upon him to do so.
The respondent insists that the evidence failed to establish that Pittock at any time after April 1, 1910, gave any of the options to purchase stock relied upon by Leadbetter. Respondent also contends that all the option agreements in question are void under the statute of frauds, and further that appellant's case must fail because the evidence shows beyond controversy that Leadbetter at no time made an election (timely or otherwise) to buy under the option of April 1, 1910, or under any of the subsequent options upon which he relies.
The alleged options to purchase the stock that Pittock obtained direct from the corporation on July 6, 1910, and July 24, 1912, are void under the statute of frauds, subdivision 5, § 808, Or.L., for want of a written memorandum, the absence of part performance, and nonpayment by Leadbetter of any part of the purchase money. For the same reason the alleged options for the purchase of dividend stock are void, unless the right to purchase the same was included in the option given April 1, 1910. The remaining transactions, if made under the circumstances testified to by Leadbetter, each constituted an option to repurchase stock, based upon a consideration and part performance, and therefore are not within the statute of frauds.
Appellant's suit apparently proceeds upon the theory that the several alleged option agreements constitute one option for the repurchase of the stock described, and that the institution of the suit constituted an election to purchase under said option contract, and thereby supplied the mutuality of right and remedy essential to the maintenance of a suit for specific performance. The relief asked is that the sum of money due under said verbal contract be determined and a decree made declaring that the appellant within one year from the date of such decree, or such other time as shall be fixed by the court, may pay to the executor the sum of money so found to be due, and that upon the payment of such money the executor be required to transfer and deliver to appellant the shares of stock, including stock dividends above mentioned.
Such options, if given, could not be withdrawn by Pittock during the time within which Leadbetter had the right to elect whether or not he would repurchase the stock. No time limit was fixed by any such option agreements, and therefore Leadbetter had a reasonable time, after the respective dates thereof, to make his election. Mossie v. Cyrus, 61 Or. 17, 119 P. 485, 624; James on Option Contracts, § 707.
When a contract rests wholly in parol, and the alleged promisor is dead, clear and satisfactory proof of the terms of the agreement and its strict performance by the promisee is required before specific performance of such contract will be granted. Herr v. McAllister, 92 Or. 581, 181 P. 741; Riggs v. Adkins, 95 Or. 414, 187 P. 303; Hawkins v. Doe, 60 Or. 437, 441, 119 P. 754, Ann.Cas.1914A, 765; Wagonblast v. Whitney, 12 Or. 83, 6 P. 399; Odell v. Morin, 5 Or. 96.
The appellant, Leadbetter, and Pittock, now deceased, sustained the relation of son-in-law and father-in-law, and their business and social relations were intimate. Pittock was a very exacting and careful business man. He gave personal attention to the smallest details and personally kept an accurate record thereof, although he had many large interests, as shown by the fact that his estate was appraised at more than $11,000,000. It is conceded that he performed all of his agreements punctually and precisely as made--that his word was as good as his bond. Also, that he exacted full and prompt performance of contract obligations in his favor.
Leadbetter, likewise, is a capable and successful business man, but does not give the attention to details that was...
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