Harris v. Wilcox

Hill, C. J. (After stating the case.) The court erred in sustaining the demurrer and dismissing the petition. Instead of the allegations of the petition failing to show a cause of action, we think two distinct causes of action are alleged. The petition is probably duplicitous for that reason, and a special demurrer on this-ground could have been interposed. But as against a general demurrer, the plaintiff can insist upon both theories of this ease -and recover, if he proves either theory. (1) If the stock was never-issued to him by the company, he would have the right to recover from the defendant the $500 which was turned over to him as the purchase-price of the stock and upon his agreement that “sometime in the near future” the stock would be issued and delivered to plaintiff. If the defendant had not purchased the stock for the plaintiff as he had agreed to do, he certainly would have no right to retain the plaintiff’s money. (2) If the defendant had paid to the-company the $500 and the stock had been issued to the plaintiff, then the defendant’s express written contract ivas to buy the stock back from the plaintiff for $500, with 8 per cent, interest from the time the stock was bought by the plaintiff, at any time the plaintiff saw fit to sell, after giving the defendant fifteen days’ notice; and it is alleged that this notice was given and that the plaintiff offered to sell and transfer the stock to the defehdant when the $500 with interest Avas paid. If these facts are proved, Ave see no-reason Avhy the defendant should not be required to comply with his contract. Judgment reversed.