Tarsia v. Nick's Laundry & Linen Supply Co.

• Decision Date: 10 February 1965
• Citation: 239 Or. 562,399 P.2d 28
• Parties: , Blue Sky L. Rep. P 70,662 Frank P. TARSIA, Respondent, v. NICK'S LAUNDRY & LINEN SUPPLY CO., an Oregon corporaton, and Nick Rossos, Appellants.
• Court: Oregon Supreme Court

Page 28

399 P.2d 28

239 Or. 562, Blue Sky L. Rep. P 70,662

Frank P. TARSIA, Respondent, v. NICK'S LAUNDRY & LINEN SUPPLY CO., an Oregon corporaton, and Nick Rossos, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 7, 1964.

Decided Feb. 10, 1965.

James J. Damis, Portland, argued the cause for appellants. On the brief were Damis & Damis, Portland.

Leo S. Meysing, Portland, argued the cause for respondent. On the brief were Brune, Meysing & Meredith Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL and DENECKE, JJ.

PERRY, Justice.

The plaintiff brought this action under the provisions of ORS 59.250 to recover from the defendants the sum of $700, paid by plaintiff to defendants for the purchase of shares of stock in the defendant corporation.

The plaintiff prevailed in the trial court and the defendants appeal.

There is very little dispute on the facts. All of the issued stock of the corporation at its inception was held by the defendant Nick Rossos and his wife, and Joe Cancilla and his wife. It is admitted that the stock of the defendant corporation had not been registered with the corporation commissioner for the purpose of sale and that the stock sold plaintiff was unissued stock of the corporation. The defendant Mick Rossos, secretary of the corporation, in the early summer of 1960 approached Mr. Fouch, superintendent of the laundry, and stated 'that he was going to be selling some stock in the company and would [he] be interested in purchasing any of it.' Mr. Fouch declined the offer. In August, 1960, Rossos met with Bryant Allison, a company employee, and the plaintiff, who had been with the company from its inception as a truck driver. After explaining that the corporation was having financial difficulties, Rossos offered to sell unissued shares of stock of the corporation at $100 per share. Allison and plaintiff were without money to purchase the stock outright so payment was to be effected by withholding from the salary of each the sum of $25 per week. In September, 160, Allison left the employ of the corporation and the defendant Rossos returned to him the money withheld (less than $100). Plaintiff testified that he could stop purchasing shares at any time. There was withheld from plaintiff's weekly salary the sum of $700, and, after the corporation was in some manner liquidated, he was delivered 7 shares of stock.

The evidence discloses that the above transactions relating to stock sales and offers were all that were made by the defendants.

The defendants contend that, since the relevant evidence is undisputed, all the facts disclose that the sale to the plaintiff is an 'isolated transaction,' expressly excluded from the Oregon Securities Law.

ORS 59.120 provides:

'* * * the Oregon Securities Law shall not apply to the sale of any security in any of the following transactions:

'* * *

'(2) An isolated transaction in which any security is bought, sold, offered for sale, subscription or delivery by the owner, or by a corporation of its unissued stock, or his or its representative for the owner's or the corporation's account, the purchase, sale or offer for sale, subscription or delivery not being made in the course of repeated and successive transactions of a like character by the owner or corporation or on his or its accounts by the representative, and the owner, corporation or representative not being the underwriter of the security.'

In Koeneke v. B & O Lbr. Co., 224 Or. 241, 243, 356 P.2d 149, 150, in considering this statute, we stated:

'In defining an 'isolated transaction' the state provides by way of comparison that a single transaction shall be distinct from a course of conduct which discloses 'repeated and successive transactions of a like character.''

In the case of Kneeland v. Emerton, 280 Mass. 371, 388, 183 N.E. 155, 163, 87 A.L.R. 1, 14, the Massachusetts court, in construing an almost identical provision, stated the same though as follows:

'* * * The words 'repeated and successive' are used by way of contrast to the word 'isolated' employed earlier in the same sentence. * * *'

It then appears a sale generally prohibited by the act is authorized as an 'isolated' sale when the intended meaning of the words 'repeated and successive transactions of like character' has been ascertained, since an 'isolated' sale is excluded as antonymous to 'repeated and successive' sales.

The legislature, in using 'isolated,' 'repeated and successive,' intended these words to be understood as they are comprehended through common usage.

The word 'isolated' means 'placed alone or apart;' the word 'repeated' means 'occurring again and again;' and the word 'successive' means 'following one upon another.' Webster's Third New International Dictionary.

It, therefore, appears that the legislative intent in using the words 'repeated' and 'successive' in the conjunctive was for the...