McCollum v. Neimeyer

Decision Date01 March 1920
Docket Number223
Citation219 S.W. 746,142 Ark. 471
PartiesMCCOLLUM v. NEIMEYER
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment reversed and cause remanded.

Troy W Lewis, for appellant.

1. The promise was a collateral undertaking which created no debt until demand for performance; and, demand having been made February 28, 1918, and refused, the suit is not barred by limitation. 4 Ark. 214; 9 Pick. (Mass.) 490.

2. Where the time of payment is not determined but remains to be fixed by one of the parties, a demand is necessary before suit. 4 Ark. 533.

3. The statute of limitations runs only from the time of contingency happening and not from the time of the promise. 1 Wm Blackst. Rep. 352.

4. The statute of limitations has no application where the undertaking provides, "if plaintiff should thereafter become dissatisfied with the purchase defendant would repay the money with interest," and, as to reasonableness of time, that should be left to a jury. 157 P. 590; 80 Oregon 468.

5. Where the parties contemplated a delay in making a demand to some indefinite time in future, the statutory period of bringing the action is not controlled by the rule of reasonableness of time in asking performance. 110 Minn. 213; 124 N.W. 994; 32 L. R. A. (N. S.), note to p. 492.

6. Where a speedy demand or notice to pay would reasonably violate the intent and purpose of the contract, a demand need not be made within the statutory period. 125 Ind. 421; 25 N.E. 542.

7. Even in cases of money payable on demand the parties may so frame their contract as to make a preliminary demand a prerequisite to the right to sue, and the statute does not run until performance is demanded and refused. 28 Minn. 501; 11 N.W. 64.

8. Where an action is based on a breach of an undertaking, the action does not accrue until the contract is broken. 1 Sandf. 98; 6 Hare 386.

9. The court can not say as matter of law that the statute has run against an undertaking that must be left to a jury to determine from the merits of the case. 32 L. R. A. (N. S.) 492.

Kinsworthy, Henderson & Kinsworthy, for appellee.

The action is barred or it will not be barred until eternity. 17 R. C. L. 755-6; 4 Ark. 214; 136 P. 1152; 50 L. R. A. (N. S.) 594; 32 L. R. A. (N. S.) 487. The construction of the cause of action was purely one of law for the court.

OPINION

HUMPHREYS, J.

On January 29, 1919, appellant instituted suit against appellees in the Pulaski Circuit Court, Third Division, to recover $ 1,500 and interest thereon at the rate of six per cent. per annum from April 8, 1907, upon a repurchase contract of $ 1,500 of the stock of the A. J. Neimeyer Lumber Company, a corporation.

The gist of the complaint is that appellant was induced on April 8, 1907, by A. J. Neimeyer, who was the president of said corporation and a large stockholder therein, to purchase $ 1,500 worth of stock at par, in said corporation, with the understanding that he, A. J. Neimeyer, should repurchase the stock if in the future appellant should not want it, at the par value thereof, with six per cent. for the time appellant held said stock; that on the 28th day of February, 1918, appellant demanded of said appellee that he repurchase said stock in fulfillment of said agreement, but that said appellee failed and refused to do so. The letter containing the inducement for the purchase of the stock was made a part of the complaint, and is as follows:

"A. J. NIEMEYER LUMBER CO.

Manufacturers of Yellow Pine Lumber Equitable Bldg.

"St. Louis, Mo. , 2/23/07.

"Mr. W. T. McCollum,

c/o Columbia Lumber Co.,

Buckner, Ark.

"Dear Will:

"We are in receipt of a check from Dr. Smith for $ 600 for stock in our company.

"Now, it has occurred to me that you can afford to take more stock than $ 600 and I make this offer to you, that you increase it to $ 1,000, giving us your note for $ 400, paying it when you can and the note will draw 6 per cent. interest.

"I think this would be a good thing for you to do. It will help you to save your money and I also am satisfied this stock will be a fine investment for you.

"If in the future you should not want this stock, I will take it off your hands and agree to allow you 6 per cent. for the time that you hold it.

"I trust that everything is getting along nicely at lumber and that you help in the woods to keep everything moving along to the best advantage possible for the company.

"Yours very truly,

N/H

"A. J. Neimeyer."

"Mr. McM. took 1,500 and paid for it and has stock certs."

On May 28, 1919, appellee A. J. Neimeyer filed a demurrer to the complaint upon the grounds (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that the action was barred by the statute of limitations; (3) that the action was barred by laches.

Upon hearing, the court sustained the demurrer, and, appellant declining to plead further, dismissed the complaint, from which dismissal an appeal has been duly prosecuted to this court.

Appellant contends that the cause of action did not accrue under the terms of the contract until the 28th day of February, 1918, the date of his demand on appellee and appellee's refusal to repurchase the stock aforesaid. The soundness of this contention depends upon the correct interpretation of the following clause in the contract "If in the future you should not want this stock, I will take it off your hands and agree to allow you six per cent. for the time that you hold it." It is quite clear from reading the clause in connection with the rest of the letter containing it that it was not in contemplation of either party that appellant should make an immediate demand for repurchase of the stock. It was suggested in the letter that, by paying a part cash and executing a note for the balance of the purchase money for the stock, it would enable appellant to save his money. This would indicate that no immediate election as to whether appellant would keep or return the stock was in contemplation of the parties. The fact that, in case appellant did not want the stock, he should receive six per cent. interest on...

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