OPTION TO RETURN STOCK PURCHASED.

Court of Appeals for Carroll County.

#### Hartman v. Gorrel et al.

Decided, April 10, 1917.

*What Constitutes Reasonable Time*— When *a Question for the Jury and. When for the Court*— Circumstances *May 'Affect Length of Time Permissible*— Stock *Purchased Under Option to Return.*

Where the purchaser of certain shares of stock had the option to return the stock after one year from the date of sale, such option may be exercised in a reasonable time after the expiration of the year. What is a reasonable time in such case is a question of fact, or of mixed law and fact, -unless the admitted facts are such as to make it apparent that the, time taken to exercise the option was an unreasonable time.

*McDonald & Oglevie,*for plaintiff in error.

*I. E. Blythe,*contra.

Metcalfe, J.

The plaintiff in error here was plaintiff below. Several amended petitions were filed in the case, and the question here is raised by the demurrer to the sixth, amended petition. The demurrer was sustained in the common pleas court.

The facts as alleged in the petition are, in substance, that in April, 1906, the plaintiff, Elmer W. Hartman, purchased from the defendants, J. W. G-orrel and W. I. Powell, ten shares of stock in the Eastern Ohio Goal & Coke Company for the price-of $1,000, -and that at the tim,e of purchase an agreement was made between Gorrel and Powell and the plaintiff, by the terms of which the plaintiff had the right after the expiration of one year from the date of purchase to surrender his stock to the defendants and upon such surrender they were to pay bim back the $1,000 paid therefor. Afterwards the stock of the Eastern Ohio Coal & Coke Co. was transferred to the J. *W.*Gorrel Coal Co. and stock in the latter company taken in its place. This *202was done in pursuance of an agreement between the stockholders of both companies.

This allegation is material only as bearing upon the averment in the petition that within “several months” after this change in stock was made the plaintiff decided to .exercise his option and thereupon tendered to the defendant Gorrel the stock which he had received, and demanded the return to himself of the $1;00|0 which he had paid for it, and that, afterwards, in December, 1913, he made a second demand for the return of the money he had paid and a second tender of the stock. Both were refused. It is averred, also, that the defendant Powell could not be served with summons in this cas,e.

The agreement set out in the petition was signed only by the defendants, Gorrel and Powell.

It is urged that there is no, consideration for the agreement on the part of the defendants to pay back to the plaintiff the amount paid for the stock, when the plaintiff tendered back to them the stock itself; that the sale of the stock was a completed contract, and that when the defendants agreed to pay back the amount paid them after the plaintiff had exercised his option to return the stock to them, such agreement was unilateral and imposed no reciprocal duty or obligation upon the plaintiff.

We do not think this position is tenable. When the plaintiff purchased the stock, and as part of the agreement of purchase, the defendants agreed to give the plaintiff an option to return the stock, and in the event that he did so to pay him back the amount paid therefor, the agreement was clearly mutual, and the transfer of the stock and payment of the money furnished a sufficient consideration. In *The Davis Laundry & Cleaning Co.*v. *Whitmore,*92 Ohio St., 44, where the action was based upon a contract for the sale of 126 shares of stock at a certain price and 124 shares at another price, it is said:

> “That, upon acceptance, the obligations became mutual, and the promise of one furnished a consideration for the promise of the other.”

We think that is the ease her,e.

*203Was the option exercised within a reasonable time? It is urged that the demand made within “several months” after the expiration of the year from the date of the purchase, and the subsequent demand in December, 1913, were not made within a reasonable time and hence the defendants were justified in refusing to comply with the demand.

The exchange of the stock of the Eastern Ohio Coal & Coke Co. for the stock of the J. W. Gorrel Co. took place in July, 1908, so that it appears that no demand was made until the lapse of a year and a quarter, to which should be added “several months,”'which is exceedingly indefinite, but we find nothing in the petition, that is to say no allegation of fact, to show that this was an unreasonable time. Th,e rule seems to be well settled that where no time is fixed by the terms of a contract, within which a demand to do a particular act must be made, time is not of the essence of the contract, and the demand must be made within a reasonable time. *Laundry Co.*v. *Whitmore, supra; Catlin*v. *Green,*120 N. Y., 441, and *Bassenhorst*v. *Wilby,*45 Ohio St., 333.

The latter action was upon an indorsement, and the question was whether or not the note had been presented to the indorser within a reasonable time. The third proposition of the syllabus reads:

> “What is a reasonable time is generally a mixed question of law and fact. Where the facts are in dispute, it should be submitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and can not properly be submitted to the jury.”

On the issue made by the petition in this case, whether or not the demand and tender were made within a reasonable time, the court is not able to say as a matter of law upon the facts stated that the time was unreasonable, and we think the question should be submitted to a jury.

If no change had taken place in the financial affairs of the company, and neither of the parties could be harmed by the delay, that is one thing. If, however, the plaintiff was simply *204lying back an unreasonable time waiting to determine tbe outcome of his investment, and when he saw that the affairs of the company were changing, or had changed for the worse, then attempted to get out from under, that is quite another thing. Judgment sustaining the demurrer reversed.

Pollock, J., and Farr, J., concur.