C. A. Hooper & Co. v. Freeman, Smith & Camp Co.

SPENCE, J.

Plaintiff filed a “Complaint for Money” seeking to recover the sum of $9,900. The cause was tried by the court sitting without a jury and from a judgment in favor of defendant, plaintiff appeals.

The transaction out of which this controversy arose took place on or about March 25, 1930. The defendant corporation was engaged in selling securities and on or about the

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date mentioned, sold to plaintiff ten bonds of the Felice and Perrelli Canning Company for the sum of $9,900. Oh April 27, 1932, being more than two years later, plaintiff sent a letter to defendant claiming that defendant had agreed to repurchase said bonds at the price paid by plaintiff, stating that plaintiff elected to avail itself of said agreement and demanding that defendant repurchase the bonds. Defendant denied the existence of any such agreement and refused to comply with the demand. Thereafter plaintiff sought to rescind' the sale, offered to return the bonds upon payment of the money, and demanded the purchase price. Upon the refusal of defendant to pay said sum, plaintiff brought this action.

The trial court found against plaintiff on the issue of the existence of said agreement and further found “that the demand made by plaintiff upon defendant under date of April 27, 1932, to repurchase the said bonds in accordance with said alleged agreement was not made within a reasonable time after the purchase of said bonds by plaintiff from defendant”.

Appellant makes several attacks upon the findings of the trial court, but it is conceded that the judgment should be affirmed if the evidence was sufficient to sustain the finding above quoted relating to appellant’s failure to demand a repurchase within a reasonable time.

There is no written agreement signed by both parties in connection with the sale of the bonds. The customary letter confirming the sale was delivered to appellant, together with the statement covering the transaction. Neither the letter nor the statement made any reference to any agreement to repurchase the bond's and appellant took no exception to the contents of these instruments. Appellant claimed that the alleged agreement had been made by a salesman of respondent corporation. There was testimony to show that said salesman had made a pencil memorandum on a prospectus at the time of taking the order as follows. “Less one point on block of 10M or more. We to give guarantee bid of same.” There was also testimony to show that the salesman had' previously said that the respondent corporation would repurchase the bonds at the price paid “at any time”. The evidence offered by respondent showed that the salesman had no authority to make any such statement or agreement.