Reichert v. Mulder
| Decision Date | 26 March 1931 |
| Docket Number | 27604 |
| Citation | 235 N.W. 680,121 Neb. 11 |
| Parties | ALEXANDER REICHERT, APPELLEE, v. REINARD MULDER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
An agreement to repurchase corporate stock at the buyer's option is valid and enforceable.
The measure of damages for breach of contract to repurchase corporate stock is the amount the seller agreed to pay as the repurchase price.
An agreement in a contract of sale of corporate stock to an employee to repurchase when the employment is terminated is valid and enforceable.
A contract which in its nature and purpose is susceptible of division and apportionment is divisible and severable.
Whether a contract is entire or severable is a question of intention as apparent in the instrument. In an unambiguous contract it is to be determined from the language, the subject-matter and the construction placed upon it by the parties in the light of the surrounding circumstances.
A contract will be treated as abandoned, where each party performs acts inconsistent with its existence, which in each instance are acquiesced in by the other.
Appeal from District Court, Lancaster County; Frost, Judge.
Action by Alexander Reichert against Reinard Mulder. Judgment for the plaintiff, and the defendant appeals.
Affirmed.
Max V. Beghtol and G. Porter Putnam, Jr., for appellant.
Sanden, Anderson, Laughlin & Gradwohl, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is an action to recover the amount represented by the book value of certain corporate stock which the defendant sold to the plaintiff under a written contract which required defendant to repurchase it at the book value at any time the plaintiff wished to sell. The trial court, at the close of all the evidence, directed a verdict in favor of the plaintiff. The defendant appeals. The only assignment of error which is presented by the argument or briefs is that the "trial court erred in enforcing the provision of the contract sued upon, for the reason that this contract was against public policy and therefore void and unenforceable."
The repurchase provision of the contract is: "It is hereby agreed by and between R. Mulder and Alexander Reichert, both of Lincoln, Nebraska, that whereas R. Mulder has this day sold and transferred to said Alexander Reichert, seven (7) shares of the capital stock of the Standard Planing Mill Company, a corporation, of the par value of $ 250 per share for the sum of $ 2,100.
"Now therefore for and in consideration of R. Mulder so selling and transferring of said seven shares of stock, Alexander Reichert hereby agrees that in case and in the event that he wishes to sell and dispose of the said stock, or any part thereof, that he will first offer it to R. Mulder for purchase at the book value per share and said R. Mulder hereby agrees to purchase said stock or any part thereof from the said Alexander Reichert at the said book value per share at any time he wishes to sell and dispose of same or any part thereof."
This controversy arose when the plaintiff desired to sell his stock to the defendant and tendered it to him on December 31, 1929. An agreement to repurchase corporate stocks at the buyer's option is valid and enforceable. Stratbucker v. Bankers Realty Investment Co., 107 Neb. 194, 185 N.W. 271; Grotte v. Rachman, 114 Neb. 284, 207 N.W. 204; Griffin v. Bankers Realty Investment Co., 105 Neb. 419, 181 N.W. 169; Trenholm v. Kloepper, 88 Neb. 236; 50 A. L. R. 327, note., 129 N.W. 436 These cases discuss this question so exhaustively and cite the authorities so comprehensively that we do not find it necessary or profitable to repeat them here. The measure of damages for breach of contract to repurchase stock is the amount the seller agreed to pay as the repurchase price. Heller v. Speier, 119 Neb. 787, 230 N.W. 835. An agreement in a contract of sale of corporate stock to an employee to repurchase when the employment is terminated is valid and enforceable. While not directly discussed in the opinion in Heller v. Speier, supra, we sustained such recovery. See Halsey v. Boomer, 236 Mich. 328, 48 A. L. R. 622, 210 N.W. 209, and annotation therein, with cases cited. See, also, Topken, Loring & Schwartz, Inc., v. Schwartz, 249 N.Y. 206, 66 A. L. R. 1179, 163 N.E. 735, together with annotation and cases cited.
The defendant contends that this contract was against public policy and therefore void and unenforceable, for that as part of the contract, or at least as an inducement to its execution, there was an oral agreement by the defendant to employ the plaintiff at an arbitrary salary. The oral employment agreement is, "that, however, at said time and in consideration of and as part of the said agreement between plaintiff and defendant referred to in paragraph I hereof, defendant orally promised and agreed to keep and retain plaintiff in the employment of said corporation, of which defendant was president, manager and practically the sole owner, upon the same basis and at the same compensation as was then and would thereafter be paid to defendant's two sons, William and George, who were then working for the corporation, and plaintiff agreed to said terms."
In passing, we note that the defendant testified that he did not remember making such an agreement. The plaintiff and another former employee of defendant,...
To continue reading
Request your trial