Pierce v. Rothwell

• Citation: 267 P. 86,38 Wyo. 267
• Decision Date: 24 April 1928
• Docket Number: 1448
• Parties: PIERCE v. ROTHWELL [*]
• Court: United States State Supreme Court of Wyoming

267 P. 86

38 Wyo. 267

PIERCE v. ROTHWELL ^[*]

No. 1448

Supreme Court of Wyoming

April 24, 1928

ERROR to District Court, Big Horn County; PERCY W. METZ, Judge.

Action by R. J. Pierce against H. P. Rothwell. Judgment for defendant, and plaintiff brings error.

Reversed and Remanded.

John Dillon and C. A. Zaring, for plaintiff in error.

Agreement to repurchase was not within the statute of frauds, Fletcher Corp. Vol. 6, p. 6505; 25 R. C. L. 484; Armstrong v Orler, (Mass.) 107 N.E. 390; the sale was an executed contract and the oral promise to repurchase was a part of it and not a separate contract, Mulford v. Torrey Co. (Colo.) 100 P. 597; Gerwell v. Morris, (Calif.) 83 P. 578; Clement v. Rose, (S. D.) 146 N.W. 700; Trenholm v. Kloepper, (Nebr.) 129 N.W. 436; Campbell v. Luebben, 132 N.W. 932; Griffen v Co., (Nebr.) 181 N.W. 171; West v. King, (Ky.) 174 S.W. 12; Johnson v. Trask, 22 N.E. 377; Crook v. Scott, 72 N.Y.S. 516; Kincaid v. Overshiner, 171 Ill.App. 87. A distinction is made by some of the authorities, where the agreement to repurchase is made by a broker or some third person, not interested in the shares of stock sold, or where shares of stock sold accompanied by promise to take back, where the company is not in existence at the time of the sale and the stock sold is in a prospective company. The present case comes within neither of these exceptions noted.

E. E. Enterline and H. C. Brome, for defendant in error.

Certain evidence offered by plaintiff was excluded, leaving no competent evidence upon which the jury could find in favor of plaintiff; the rule as to this evidence is not argued in plaintiff's brief, and is therefore waived, Sup. Court Rule 14; Riordan v. Horton, 16 Wyo. 363; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106; Garber v. Spray, 25 Wyo. 52. The alleged agreement was within the statute of frauds, 4726 C. S.; 6 Fletcher Corp. 6505; plaintiffs relied on provisions of Sec. 4726, a part of the Sales Act; the authorities cited by defendant are in point on the facts; the oral agreement embraced two contracts, Hagar v. King, 38 Barb. 200. The following authorities support the ruling of the trial court; 4726 C. S.; Williams-Hayward Co. v. Brooks, 9 Wyo. 424; 27 C. J. 237; Weatherly v. Cotter, (Ga.) 83 S.E. 104; Seaman v. Sweat, (Ga.) 95 S.E. 378; Chamberlin v. Jones, 52 N.Y.S. 998; Morse v. Douglass, 99 N.Y.S. 392; Morrer v. Madden, (Wis.) 140 N.W. 325; Becker v. Kreul, (Wis.) 181 N.W. 211. The judgment of the court below should be affirmed.

BROWN, District Judge. KIMBALL and RINER, JJ., concur.

OPINION

BROWN, District Judge.

The plaintiff in error was plaintiff and defendant in error was defendant in the lower court. They will be referred to as plaintiff and defendant respectively here.

Plaintiff claims in his petition that on or about March 31, 1922, he bought certain shares of the capital stock of the First National Bank of Thermopolis, Wyoming, from defendant, who was at that time the President, Director and a large stockholder of said bank, relying upon his oral promise made at the time of the purchase that in case plaintiff became dissatisfied with the stock, defendant would repay to plaintiff on demand the sum paid for the stock. Plaintiff became dissatisfied with the stock about January, 1923, and offered to return it to defendant, and demanded repayment from him. This was refused. The answer was an admission of defendant's position in the bank and a general denial of the remaining allegations of the petition. After the plaintiff rested, the court directed a verdict in favor of defendant. The case is here on error proceedings. The sole question in this court is whether or not the oral promise on the part of defendant, in case plaintiff became dissatisfied with the stock, to "take it off his hands," is within the inhibition of the 17th Section of the Statute of Frauds, and therefore unenforceable. When plaintiff and his witness were interrogated with reference to the oral agreement, objection was made and the court reserved his ruling, and received the testimony. At the close of plaintiff's case, the court then ruled on the objection and struck the evidence from the record. The defendant contends that because the plaintiff in his brief makes no mention of the adverse ruling on the admission of this evidence, the point has been waived by him under rule 14 of this court. That after the evidence was out of the record, the court could not do otherwise than sustain the motion for a directed verdict, since there was no evidence in the record to sustain a verdict for plaintiff. The argument is ingenious. The point is extremely technical. The only question before the court below was whether or not the oral promise was within the Statute of Frauds. The rulings on both the objection to the evidence and the motion for a directed verdict were made at the same time, and because, as we understand, the court believed that the oral promise was within the Statute of Frauds. It certainly would be unnecessary for plaintiff to repeat his argument on each of the points mentioned in his brief in order to have the point considered. Whenever two assignments of error raise the same question, it may be presented under either of the assignments. See McClintock v. Ayers, 36 Wyo. 132, 152, 253 P. 658.

Section 4726, Wyo. Comp. Stat. 1920, (§ 4, Uniform Sales Act) provides:

"A contract to sell or a sale of any goods, or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf."

The position of the defendant is that there were two separate, distinct contracts; the first, a sale of the stock by some bank officer to plaintiff, and second the parol agreement by defendant to repurchase the stock from plaintiff in case he became dissatisfied. That where the promisor is not selling his own stock he could not orally make a binding contract to repurchase that which he did not previously own, and if he undertook to do so, his parol agreement would be in the nature of a separate independent contract; the first one being completed when the stock was delivered and paid for, the second between different contracting parties and wholly within the statutes of frauds.

The evidence shows that the whole transaction was made with Rothwell in his private office in the bank. On cross-examination plaintiff does say he bought the stock from the bank and that he paid the bank for it, yet when permitted to answer freely, he says he really bought from Rothwell and gave him his check for same and that he thought, but would not be certain, that he received the stock from him. We quote from the examination:

"Q. Well now leading up to the day you purchased the stock, just tell the jury what transpired in Thermopolis that day? A. I met Mr. Palmer and he told me he was going over to the bank, and he went over to the bank with me. He bought some stock in the bank and talked to me and told me he thought it was a good thing, but I didn't want to tie my money up, but I talked with Mr. Rothwell and he told me the bank was paying 20% on the investment, that is 20% on the par value. I had a little money there on deposit, and when I told him I didn't want to tie up in it, he said, 'Any time you become dissatisfied I will take the stock off your hands.'"

On cross examination:

"Q. In other words you were to buy 25 shares of the capital stock of the bank, from the bank, there is where you got it, didn't you? A. Yes, I bought it on the strength of Mr. Rothwell's Q. You were to buy 25 shares of the capital stock of the bank and pay $ 5000.00 for it, that was the first agreement? A. Yes. Q. Then after you bought it from the bank and paid them for it, then Mr. Rothwell agreed at any time you became dissatisfied with the stock, he would buy it back from you and pay you the same price you paid the bank for it? A. He told me this before I bought the stock. Q. I am not trying to confuse you at all, I am just trying to get this straight. Doctor, now understand me, you were to buy the stock from the bank, that you testified to, twenty five shares of the capital stock of the bank and pay $ 5000.00 for it, and then he agreed that if you did that, took the stock from the bank, if at any time you became dissatisfied with the investment or purchase, he would buy the stock back from you at the price you paid the bank? A. Yes, sir. Q. And that is the agreement you acted under in substance: In other words, after you made that agreement with him, then you went and bought the stock from the bank and paid for it? A. I really bought the stock from Mr. Rothwell, didn't rely on the bank, didn't know anything about the banking business, wish I did. Q. But you did buy it from the bank and paid the bank for it? A. Yes, I paid the bank. Q. In other words, as you testified here, he (Rothwell) wanted your influence and so on, and that if you would buy the stock from the bank he later on would buy the stock from you at any time you were dissatisfied and pay you the same price you paid the bank? A. Yes, sir."

It seems clear from all of the testimony that there was only one transaction. There is no testimony whatever that any of the negotiations leading up to or at the time of the purchase of this stock was had with any other officer of the bank. Plaintiff says he really bought from Rothwell, and gave him his check in payment therefor. It seems that the witness never understood clearly that the attorney for defend...