Trenholm v. Kloepper

• Decision Date: 09 January 1911
• Docket Number: 16,503
• Citation: 129 N.W. 436,88 Neb. 236
• Parties: BELLE S. TRENHOLM, APPELLEE, v. WILLIAM KLOEPPER, APPELLANT
• Court: Nebraska Supreme Court

129 N.W. 436

88 Neb. 236

BELLE S. TRENHOLM, APPELLEE, v. WILLIAM KLOEPPER, APPELLANT

No. 16,503

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

George W. Berge, for appellant.

T. J Doyle and G. L. De Lacy, contra.

OPINION

ROOT J.

The plaintiff alleges in her petition that in January, 1905, she bought from the defendant ten shares of the capital stock of a corporation; that to induce her to make said purchase the defendant orally agreed to pay to her upon demand the amount of money she should pay for said stock; that she has requested the defendant to pay said money, but he refuses, etc. The defendant denies the alleged agreement, and pleads the statute of frauds and an alleged estoppel. Plaintiff prevailed, and the defendant appeals.

1. The argument of counsel goes largely to the application of the statute of frauds to the transaction testified to by the plaintiff. The defendant testified in substance that in his negotiations with the plaintiff he acted solely as an agent of the corporation. It appears from the plaintiff's evidence that she is a widow; that during her husband's lifetime the plaintiff and the defendant were neighbors and friends; that subsequent to her husband's death the defendant suggested to the plaintiff that she purchase stock in the Lincoln Transfer Company, a corporation. The plaintiff testified: "I told Mr. Kloepper that I would not put my money into stock unless I could get it out when I needed it; that I did not have the money to spare to leave my money in there any length of time, not any great length of time, and he said any time I notified him and gave him three or four months' notice I could have my money." The plaintiff further testifies that in purchasing the stock she relied upon the defendant's statement that he would pay her the money if requested so to do.

The transaction, as we view it, is not within the statute of frauds. The agreement is not to answer for the debt, default or misdoings of the corporation, or of any other person, nor to purchase the stock sold to Mrs. Trenholm, but is an original undertaking on the part of the defendant that, if the plaintiff will purchase and pay for the stock, he will thereafter, upon a contingency, pay her a definite sum of money. On the plaintiff's part, the contract was fully executed, and the defendant cannot escape the consequences of his undertaking because he did not own the stock purchased in reliance upon his promise. Moorehouse v. Crangle, 36 Ohio St. 130; Kilbride v. Moss, 113 Cal. 432. The fact that the plaintiff is willing to transfer her stock to the defendant does not transfer his contract into one of bargain and sale.

2. After the certificate was issued to the plaintiff, the corporation increased its capital stock and a stock dividend was declared by those in control of its affairs. The plaintiff, in common with the other stockholders, returned her certificate of stock and received a certificate including the shares she purchased and those issued as a dividend. Counsel argue that plaintiff is thereby estopped from maintaining this action. We are not advised that the defendant changed his position by reason of the facts just referred to. If the dividend is of any value, the plaintiff has offered him not only the stock she received in the first instance, but accumulated dividends as well, so that he will be benefited...