#### Vohland, Appellant, vs. Gelhaar, Respondent. Same, Respondent, vs. Same, Appellant.

*May 13*

June *5, 1908.*

*Contracts: ~Validity: Statute of frauds: Sales: Agreement to take hack at advanced price: Entire contract: Part performance.*

1. A finding by tbe jury that defendant agreed to repurchase mining stock sold by him to plaintiff within one year from the .date of the sale, is *held*to be sustained by the evidence; and sec. 2307, Stats. (1898), is therefore inapplicable.

2. Where, as a condition of the sale of mining stock, the vendor agreed that he would, at the vendee’s request, repurchase it within a year at an advanced price, there was but one entire contract, and delivery of the stock and payment therefor by the vendee constituted such part performance as satisfied the statute of frauds — sec. 2308, Stats. (1898), — and entitled the vendee, upon due demand, to recover the advanced price.

Appeals from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Reversed on plaintiff's appeal.*

This case comes before this court on appeals by both tbe plaintiff and defendant from a .judgment of the circuit court *76for Milwaukee county in favor of tbo plaintiff and. against tbe defendant for tbe sum of $300, interest and costs, amounting in all to $403.52. Tbe plaintiff brought action to enforce an agreement between tbe parties, by wbicb the defendant promised to repurchase from tbe plaintiff 600 shares of mining stock for $1 per share, which at the time of making the agreement was sold by the defendant to the plaintiff for fifty cents per share. The condition upon which the defendant was to repurchase the stock was that the plaintiff should tender a return thereof within one year from the date of sale, which took place November 15, 1902. The plaintiff tendered back the stock within a year and demanded $600 therefor, in accordance with the agreement, but the defendant refused to repurchase the same and pay said sum. The issue of fact as to whether such agreement was made was decided in a special verdict by the jury in favor of the plaintiff. Upon this verdict the court rendered a judgment for $300 instead of for $600, in accordance with the agreement. The plaintiff contends that the court should have rendered judgment for $600, with interest and costs, while defendant insists that the special verdict was contrary to the evidence and that the contract to repurchase was void because within the statute of frauds (sees. 2307, 2308, Stats. 1898).

For the plaintiff there was a brief by *Fred 0.*Lorenz, and ■oral argument by *Marls A. Oline.*

*John F.*Thieman, for the defendant.

BashNoed, J.

The defendant contends that the finding of the jury that he agTeed to repurchase the stock sold the plaintiff within one year from the date of sale is not supported by the evidence, and consequently that such an agreement, if made, no part thereof having been reduced to writing, was void under sec. 2307, Stats. (1898). The plaintiff testified that the defendant stated to her repeatedly, when frying to sell her the stock: “If you buy these shares, if you *77don't want them in the time of a year, I take them baek for a dollar a share; ” and that this was the consideration for the purchase of the same by her at fifty cents a share. Her son, who was present, testified that the defendant stated that the money was needed for a smeltel and that the mine would pay dividends before Christmas, and “made plaintiff the proposition, if she would take the shares, that he would agree to take them back within' a year at a dollar a share.” Plaintiff’s husband, who acted as her agent in part of the negotiation, stated that the defendant made similar representations to him. Another witness, who was in the employ of the plaintiff at the time the purchase was made, fully corroborated her testimony that if she did not want the stock defendant would take it back at $1 a share at the “time of a year.” This witness, as well as the plaintiff; did not speak English with accuracy, and the idea intended to be conveyed by the words quoted, as understood by the jury, was that the defendant would take back the stock at the end of the year or within the year. This proof was sufficient to warrant the finding of the jury as to the terms of the agreement and consequently sec. 2307 has no application.

A more difficult question arises on the application of sec. 2308, Stats. (1898). T^he third subdivision of that section renders the agreement to repurchase the stock void, if it be treated as an independent contract, unless the plaintiff at the time it was made paid some part of the consideration therefor. The plaintiff maintains that the statute does not apply because the agreement to buy the stock by the plaintiff and to repurchase the same by the defendant at her request within the year was one entire contract, which had been fully performed by the delivery of the shares and the payment of the original purchase price. The defendant contends that the sale of the stock to the plaintiff and the agreement to repurchase were separate and independent contracts and that the latter is avoided by the statute. The trial court apparently *78adopted the view that the transaction established an entire contract, but held that the agreement to repurchase embodied two elements, the first giving the plaintiff the right to rescind the sale and to demand a return of the purchase money, and the second a promise on the part of the defendant to pay the plaintiff an additional fifty cents on each share upon such rescission ; that the first element was not affected by the statute of frauds, while the second element was avoided by its provisions. Upon this theory plaintiff was awarded judgment for the purchase money and interest. This conclusion is assailed by counsel for both parties, and we are unable to see how it can be sustained, either upon reason or authority.

If the agreement to sell and the promise to repurchase are parts of the same transaction there is but one entire contract, for which the consideration was paid and under which the property was delivered, and consequently the statute of frauds has no application. The agreement to take back the stock expressly provided for the payment of $1 per share. There was no stipulation for rescission upon any other terms. It is difficult to see how this part of the contract can be treated as divisible and a repurchase compelled upon repayment of the purchase price. This would be to make a new contract for the parties, which neither party has ever assented to and which both parties repudiate. If there is a right of rescission on the part of the plaintiff it must be enforced in accordance with the terms of the contract as established by the evidence.

The jury found that the defendant agreed, as a condition to tire sale of the stock to the plaintiff, that he would purchase back the stock at $1 per share, and that the repurchase would be made within one year from the date of sale, and that the plaintiff offered back the stock to the defendant at $1 per share within the year. The evidence is sufficient to support all these findings, and we conclude, therefore, that this was an entire contract for the sale of the stock, the consideration *79for wbicb was fully paid by tbe plaintiff to tbe defendant, be promising at tbe time to take tbe same back witbin a year if tbe plaintiff so desired and to pay ber tberefor $1 per share. Tbe promise to take back tbe stock by tbe plaintiff is referred to in tbe complaint as an agreement to repurchase, as it is also in tbe second answer of tbe special verdict. Tbe terms were obviously so used as synonymous, as all tbe testimony on bebalf of tbe plaintiff was that tbe defendant promised to take back tbe shares at tbe increased price witbin or at the time stated. Tbe plaintiff executed the contract on ber part, tendered back the stock before tbe expiration of tbe year, and ■demanded tbe price agreed to be paid tberefor. Tbe agreement to purchase tbe stock by tbe plaintiff upon tbe consideration stated, and tbe promise to take back tbe stock at an advanced price, being parts of an original and entire contract, ■constituted a conditional sale, and tbe delivery of tbe shares and tbe payment of tbe purchase price satisfied tbe statute of frauds, and tbe plaintiff is entitled to recover tbe amount agreed to be paid by tbe defendant upon a return of tbe ■stock.

Tbe legal principle underlying tbe foregoing proposition is fully supported by tbe adjudicated cases: *Williams v. Burgess,*10 A. & E. 499; *Lumsden v. Davies,*11 Ont. App. 585; *White v. Knapp,*47 Barb. 549; *Wooster v. Sage,*67 N. Y. 67; *Fitzpatrick v. Woodruff,*96 N. Y. 561; *Hilliard v. Weeks,*173 Mass. 304, 53 N. E. 818; *Henderson v. Touchstone, 22*Ga. 1; *Fay v. Wheeler,*44 Vt. 292.

Tbe agreement in all tbe cases cited, except tbe two first, was that tbe seller would take back or repurchase tbe thing sold at tbe original purchase price, in some instances with interest; but a stipulation for an advanced price would not affect tbe principle involved, but might be considered as proof tending to establish an independent contract void under tbe .statute. An application of tbe doctrine is well illustrated in tbe English cases cited. In *Williams v. Burgess, supra,*
      *80plaintiff sold a mare to tbe defendant for £20 with the understanding that, if she should prove to be in foal,,he might have her back on paying £12. The mare was delivered to the defendant, and afterwards, when she proved to be in foal, the plaintiff tendered £12, but the defendant refused to-return her and set up the statute of frauds as a bar to recovery on the agreement. The court held that this stipulation was not an independent agreement, hut was part of the original contract, which was a qualified sale, which was taken out of the statute by the acceptance of the thing sold. *Lumsden v. Davies, supra,*follows this decision, and applies the rule-to a sale of tea by the defendant to the plaintiff, upon a verbal agreement that he would take back, at an advance of ten cents a pound, such part thereof as the latter should have in-stock at a certain date. The court held that there was but, one entire conditional contract, not one contract to sell the tea to the plaintiff and another to buy it back; and therefore the delivery of the tea by the defendant satisfied the statute of frauds and plaintiff was entitled to recover for the defendant’s refusal to take back the unsold tea. In *Wooster v. Sage, supra,*plaintiff purchased of defendant certain railroad bonds, with the option of returning the same if he became-sick of them, in which case defendant agreed to repay the purchase money. ' The offer to return the bonds was not made until three years after the sale. It was held that the agreement to take back the stock was not void under the statute, and that the plaintiff was entitled to recover the purchase money with interest. In *Fitzpatrick v. Woodruff, supra,*defendant sold plaintiff certain bonds, and promised that if the latter became dissatisfied he would, on thirty days’ notice, take them-back and return the money paid for them with interest. In an action to recover the amount it was held that the agreement was not within the statute of frauds and the plaintiff was entitled to recover. In *Fay v. Wheeler, supra,*defendant sold plaintiff certain shares of stock and agreed to take the *81same back and repay tbe plaintiff tbe purchase price on request. It was held that tbe contract for repayment was not within tbe operation of tbe statute of frauds though not in writing. Tbe following language in tbe opinion is applicable to tbe facts here presented:,

> “The promise and undertaking sought to be enforced was a part of tbe plaintiff’s purchase by tbe original contract, and so material a part that tbe purchase would not have been made without it. Tbe original contract was taken from tbe operation of tbe statute by a part performance by both parties, by tbe delivery of tbe stock by tbe defendant, and by tbe payment of the money by tbe plaintiff.”

Browne on Statute of Erauds (sec. 293) says: “A stipulation that tbe subject of tbe sale may be returned in a' certain event is not to be regarded as a contract for resale, so as to be affected by tbe statute,” and be there makes reference to *Williams v.*Burgess, above referred to. He says in sec. 293a:

> “But it may be necessary to distinguish between such a case as this, where tbe stipulation to return is annexed to tbe original sale by way of condition, and tbe case of a stipulation to resell at a future time for tbe same or a different price, although made contemporaneously with tbe original sale.”

He cites no decision which recognizes tbe distinction, where tbe stipulation was made by tbe parties to tbe original contract, and defendant’s counsel has referred to none, although insisting that the stipulation in tbe present contract is for resale and not for rescission. Tbe intention of the parties to a contract must be determined by tbe language employed as generally understood and not by a technical definition of words in common use in ordinary transactions. Tbe use of tbe word “repurchase,” in defining tbe stipulation, sufficiently expresses the understanding of the parties, as testified to by tbe plaintiff, that she bought the stock relying upon tbe promise of tbe defendant that be would take it back *82within a year, if she so desired, at $1 per share. The general rule stated by Mr. Browne is here applicable, and the distinction which he seeks to make, has no bearing in this case.

The plaintiff, upon the evidence in this record and upon the authorities cited, is entitled to recover the price stipulated upon a return of the stock as part of the original contract, with interest from the date of defendant’s refusal to fulfil his promise in that regard.

*By the Court.*— Judgment reversed on plaintiff’s appeal, with directions to enter judgment in accordance with this opinion; the defendant to take nothing on his appeal.