Reynolds v. Scriber

• Decision Date: 03 June 1902
• Citation: 41 Or. 407,69 P. 48
• Parties: REYNOLDS v. SCRIBER et al.
• Court: Oregon Supreme Court

69 P. 48

41 Or. 407

REYNOLDS v. SCRIBER et al.

Supreme Court of Oregon

June 3, 1902

Appeal from circuit court, Union county; Robert Eakin, Judge.

Suit by J.E. Reynolds against J.W. Scriber and others. From a decree for defendants, plaintiff appeals. Affirmed.

This is a suit to enforce the specific performance of a contract for the purchase of personal property. On March 10, 1900, the parties hereto were stockholders in the Union County Alliance Flouring Mill Company, a corporation with a capital stock of $25,000, divided into 2,500 shares, of the par value of $10 each. The plaintiff owned 1,218 shares acquired by subscription, and claimed to own 70 shares of treasury stock and was president and business manager of the corporation, at a salary of $100 a month. The defendant was the owner of 80 shares in his own right, and had contracted for the purchase of 735 additional shares. On the day named, the plaintiff entered into negotiations with defendant for the sale of the 1,218 shares, and the surrender for cancellation of the treasury stock, which finally resulted in an offer by the plaintiff to sell the 1,218 shares for $6,850, and the acceptance thereof by the defendant; the plaintiff agreeing to surrender the 70 shares for cancellation upon the repayment to him by the company of $490, the amount claimed to have been paid therefor. In payment for the shares so contracted for, the defendant was to take up and deliver to the plaintiff two notes executed by him and held by one McKinnis, amounting in the aggregate to $2,735.26, and to pay the remainder in installments. After some further negotiations, the parties went to the office of Mr. Slater an attorney at La Grande, for the purpose of having the contract reduced to writing, and, although one was prepared it was never executed. To enable Slater to prepare the necessary papers, the certificates of stock held by the plaintiff, and also the McKinnis notes, which in the meantime had been purchased by and assigned to the defendant, were delivered to him. About the same time the plaintiff and defendant called at the La Grande National Bank, to which the mill company was indebted in the sum of about $13,000, and as the evidence tends to show, upon the representation of the defendant that he had purchased the plaintiff's stock in the company the bank permitted him to take up the indebtedness held by it against the corporation. Thereafter, and up to the 20th, there seem to have been some negotiations between the parties looking to the consummation of the contract, but without avail. On the 20th, at a meeting of the board of directors of the mill company, of which the defendant was not a member, however, a resolution was adopted directing the payment to the plaintiff of the amount alleged by him to have been advanced in payment of the treasury stock, and for the cancellation thereof. The plaintiff at the same time resigned as president and manager, on an assurance, as he claims, from the defendant, that he would consummate the contract and purchase the stock, which he subsequently refused to do. The next day the plaintiff executed, in form, a proper assignment of the certificates of stock to the defendant, which he tendered to him, and, upon his refusal to accept them, this suit was brought to enforce a specific performance of the contract.

T.H. Crawford, for appellant.

J.D. Slater, for respondents.

BEAN, C.J. (after stating the facts).

There is some controversy in the testimony, and it is somewhat doubtful whether the contract is so clearly and unmistakably proven as to enable a court of equity to enforce its specific performance; but, waiving that point, we are of the opinion that it is void under the statute of frauds, and cannot be enforced for that reason. The contract rests...