Grace Securities Corp. v. Roberts

Hudgins, J., delivered the opinion of the court. This is an action to recover $2,655.00 for a breach of contract to repurchase stock sold the defendant in error by the plaintiff in error. The case was submitted, on stipulation of counsel, to the trial judge without a jury, and judgment was rendered for the defendant in error. The parties will be designated plaintiff and defendant, as they appeared in the trial court. The facts are brief and may be stated thus: On September 21, 1927, at the office of the defendant, the Grace Securities Corporation, in the city of Richmond, the plaintiff was induced by Mr. Oscar E. Parrish, at that time its senior executive and active vice-president, to buy sixty shares of stock in the corporation at $44.25 per share, with the written assurance that the corporation would repurchase the same at any time she desired to sell. At that time the stock of the defendant corporation was offered on the Richmond market at $46.50 and bid $44.00 per share. Dividends were duly paid on the stock during the years 1927, 1928 and for the first six months of 1929. Some time during that year and after the October dividend was passed, the offering price of the.stock was $15.00, and [796] bid $8.00, per share. On December 2nd, the plaintiff demanded that the defendant repurchase the sixty shares in accordance with its promise. The demand was refused, and this action followed. The defendant contends: (1) That the act of Parrish in making this agreement to repurchase the stock was ultra vires; (2) that the words, “at any time,” contained in the promise meant a reasonable time, and that a reasonable time in which to repurchase the stock had expired before the plaintiff requested the defendant to comply with its written offer. The defendant, both in stating the first assignment of error and in its argument thereon, failed to make the distinction between an act which is ultra vires i. e., an act of a corporation which is not within the power conferred by its charter or the general law—and an act of an officer or agent which is within the charter powers but not authorized by the corporation. The first question to be determined is whether or not the contract, if within the charter powers of the corporation, was executed under such circumstances as to make it the act of the corporation. The plaintiff knew that the defendant held out to the public Parrish as its active chief executive officer, and that it maintained an office for him. Parrish made the agreement in the name of the corporation and for its benefit. The plaintiff paid her money to the investment department of the corporation, and was given a receipt therefor with the contract written thereon, a duplicate copy of which was retained by the department, with a notation thereon to send check for dividend October 1st. While it is stated that neither the board of directors nor the executive committee ever passed a formal resolution directing Parrish to make the contract with the plaintiff, there is no denial of the fact that the members of the board had full knowledge [797] of the conditions under which the plaintiff paid her money to the corporation. With this knowledge the corporation will not be permitted to repudiate the act of Parrish on the ground that his act was not authorized by it. Fletcher Cyc. Corp., section 1965, where it is said: “If officers of a corporation exceed their powers, their acts may be repudiated by the board of directors. However, if directors desire to repudiate a sale by executive officers, they should act promptly, notify the other party to the contract, and return benefits received.” In Winston v. Gordon, 115 Va. 899, at page 907, 80 S. E. 756, 760, Keith, P., in discussing a similar question, cites the following authorities: “In Kelsey v. National Bank, 69 Pa. St. 426, it is said: ‘The law is well settled that a principal who neglects promptly to disavow an act of his agent, by which the latter has transcended his authority, makes the act his own; and the maxim which makes ratification equivalent to a precedent authority is as much predicable of ratification by a corporation as it is of ratification by any other principal, and it is equally to be presumed from the absence of dissent.’ ' “And in 2 Kent’s Com. 616, the law is thus stated: ‘It is a very clear and salutary rule in relation to agencies that where the principal, with knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them under pretense that they were done without authority, or even contrary to authority.’ “In Sherman v. Fitch, 98 Mass. at page 64, the court said, speaking of the authority of an agent to execute a mortgage on behalf of a corporation: ‘It is not necessary that the authority should be given by a formal vote. Such an act by the president and general manager of the business [798] of the corporation, with the knowledge and concurrence of the directors, or with their subsequent and long continued acquiescence, may properly be regarded as the act of the corporation. Authority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objection, as well as in the' ease of individuals.’ “In Fort Worth Publishing Co. v. Hitson et al., 80 Tex. 216, 14 S. W. 843, 16 S. W. 551, * * * the court said: ‘We can see no good reason why a corporation may not be bound by acts of acquiescence in a transaction which may be irregular on its face if not prohibited, or which may be in excess of the officer’s power acting for the corporation.’ ” See also Holstein-Harvey-Kirk Co. v. H. Kirk & Sons, 150 Va. 82, 142 S. E. 373. When the contract was made with the defendant, plaintiff was not informed whether the defendant was acting for itself or as agent for an undisclosed principal. It is now claimed in defendant’s brief that the stock was owned by a pool composed of its directors, and not by the corporation itself. The only proof in the record on this subject is as follows: (1) Letter from Oscar E. Parrish to Robert H. Talley, dated May 6, 1930; (2) stipulation of counsel containing an agreed statement of facts; (3) the pool contract of December, 1926.1 [799] The pertinent paragraph of the letter of May 6, 1930, is as follows: “As the corporation at that time, through pool operation composed of members of the board of directors, was buying and selling its stock, I recommended that she purchase this stock with the understanding that the corporation would redeem it, if necessary, at the purchase price.” The following is the statement contained in the stipulation of council: “It is, however, denied by officers of Grace Securities Corporation that the corporation was .buying and selling its stock through pool operations. A pool was formed by certain individual stockholders as per the attached copy of an agreement entered into in December, 1929, and marked 'Exhibit C’ as a part of this stipulation. “It is further denied by officers of the corporation that 'sales had been made through the officers of institutions with these agreements/ or that any action of the board or executive committee was ever taken authorizing such agreements.” Parrish states that the corporation, through the pool, was buying and selling its stock. The stipulation denies that the corporation was buying and selling its stock, but does not affirm that the pool owned this stock, or whether [800] or not it bought and sold any stock. There is no proof that any part of the plaintiff’s money was ever paid to the pool. The corporation acknowledged that it received her money and gave her a receipt therefor, with the distinct understanding that the money would be returned by the defendant on her making demand upon it. Parrish confused the action of the board of directors in managing corporate affairs with the action of the board when and if it was operating as a pool. If these matters were distinct, they were within the peculiar knowledge of the defendant, and inasmuch as it did not avail itself of the opportunity to clarify the sale, we will regard the ownership of the stock in question as in the defendant corporation. Having disposed of these preliminary questions, we now turn to the question raised by the first assignment of error, viz: Did the corporation have the power to make the contract to repurchase its stock? There are current two inconsistent doctrines on the subject. One is that it is inherently illegal, in the absence of statutory authority, for a corporation to purchase its own stock. The other is, that a corporation may buy its own stock, if the interest of creditors be not adversely affected, and if its power to buy be not restricted by its charter or by the general law. Both doctrines are fully discussed in the following cases and in the annotations [801] thereto in the L. R. A. series: C. R. Fitzpatrick v. C. E. McGregor, Receiver, etc., 133 Ga. 332, 65 S. E. 859, 25 L. R. A. (N. S.) 50; Atlanta & Walworth Butter & Cheese Asso. v. Smith, 141 Wis. 377, 123 N. W. 106, 32 L. R. A. (N. S.) 137, 135 Am. St. Rep. 42; Schulte v. Boulevard Gardens Land Co., 164 Cal. 464, 129 Pac. 582, 44 L. R. A. (N. S.) 156, Ann. Cas. 1914B, 1013; Lefker v. Rachel Harner, 123 Ark. 575, 186 S. W. 75, L. R. A. 1916F, 281; Kelly v. Central Union Fire Ins. Co., 101 Kan. 91, 165 Pac. 806, L. R. A. 1918C, 1170; see also 6 Fletcher Cyc. Corp. (Perm. Ed.), sections 2845, 2878. The following authorities hold that under certain conditions such a contract will be enforced in this State: In U. S. Min. Co. v. Camden & Driscoll, 106 Va. 663, 56 S. E. 561, 117 Am. St. Rep. 1028, the corporation sold twenty-five shares of its capital stock at $100.00 per share, upon an agreement to repurchase on demand, if made within four months from the date of sale. The original purchasers exercised their option within the specified time, but the corporation declined to repurchase. Thereupon action was instituted. The corporation claimed that the contract was ultra vires, and therefore void. This court, in disposing of that contention, said: “In the absence of charter or statutory prohibition, it is well settled, indeed the prevailing doctrine in the United States, that corporations may purchase, hold and sell shares of their own stock, provided they act in good faith and without intent to injure their creditors. Rivanna Nav. Co. v. Dawsons, 3 Gratt. (44 Va.) 19, 46 Am. Dec. 183; Shoemaker v. Washburn L. Co., 97 Wis. 585, 73 N. W. 333; Republic L. Ins. Co. v. Swigert, Auditor, 135 Ill. 150, 25 N. E. 680, 12 L. R. A. 328; Rollins v. Shaver Wagon Co., 80 Ia. 380, 45 N. W. 1037, 20 Am. St. Rep. 427; Dock v. Schlichter Jute [Cordage] Co., 167 Pa. St. 370, 31 Atl. 656; Blalock v. [Kernersville] Mfg. Co., 110 N. C. 99, 14 S. E. 501.” [802] See, also, Duncan v. Carson, 127 Va. 306, 103 S. E. 665, 105 S. E. 62; Kennerly v. Columbia Chemical Corporation, 137 Va. 240, 119 S. E. 265. We deem it useless to enter into a discussion of the various circumstances under which courts have enforced or refused to enforce such a contract. The defendant here, in the. stipulation of its counsel, states: “Neither the corporation’s charter, nor the general law, contains a provision forbidding it to purchase or deal in its own or any other stock or make agreements relative thereto;” and in its brief asserts that “the right is vested in the corporation to sell, buy and otherwise deal in its own stock.” We then have the defendant admitting that there is no provision in its charter or the general law forbidding it to make the contract, and positively asserting that the corporation had such power. How- then can it consistently urge that this contract of the corporation is ultra vires? We are confined in this as in all other cases to the record as made in the trial court. In addition to the above, the record consists of (1) a declaration in assumpsit containing the usual counts and a special count setting up the contract; (2) a plea of non est factum filed by the defendant; and (3) the stipulation of facts agreed on by counsel for the respective parties. As we have pointed out above, the defendant made the contract with the plaintiff, and hence its plea of non est factum failed. The defendant did not see fit to introduce in evidence its charter, nor is it proven that the defendant owes any debts, or that it had the right to issue and did issue more than one class of stock, or show that any stockholder would be affected by the enforcement of the contract with plaintiff other than to state that the market value of the stock had depreciated. These were affirmative defenses and unless proven we cannot consider them. [803] If the contract of repurchase is valid, the plaintiff has under it a right to deliver her stock to the defendant and receive from it the price agreed upon. The same result follows if the contract to repurchase is invalid. If we concede that the contract is ultra vires (and for the purposes of this case and for the sake of the argument we are willing to concede this), it is void and might as well have never been written, for the net result of the transaction is that the defendant has the plaintiff’s money, has given no consideration therefor and holds it illegally. In 4 Fletcher’s Cyc. Corp. (Perm. Ed.), section 1538, in discussing an agreement in a subscription to repurchase or take back its stock, it is said: “According to the weight of authority, an agreement by which a purchaser may, at his option, at the end of a certain time, return the stock and receive back the price, or whereby the company agrees to repurchase it at an agreed price after a certain time, is in the nature of a conditional sale with an option to the purchaser to rescind, and is valid, provided there is a sufficient consideration which supports it, and there is no fraudulent invasion of the rights of creditors or of the other stockholders. A reason sometimes given for sustaining such agreements is that the contract is entire and indivisible, and that the sale cannot be sustained unless the contract to repurchase can be enforced; nor can the corporation be heard to say that the latter provision is ultra vires without rescinding the sale and returning the purchase money.” See also Id., section 2849. As we have already indicated, the record does not disclose that there has been any invasion of the rights of creditors or stockholders in this case. The agreement to repurchase would have been a perfectly worthless warranty if it could have been exercised only on a rising market, and no one could have expected this purchaser to avail herself of it under such conditions. [804] It was an inducement to her to purchase, and held out to her as an inducement. She availed herself of it when loss was threatened, as she might naturally have been expected to do, and only in this event was it of any value at all to her. In Richmond, Fredericksburg & Potomac R. Co. v. Richmond, etc., Connection Co., 145 Va. 266, at page 303, 133 S. E. 888, 899, it was said: “Ordinarily, according to former rules of procedure in a case of this kind, the proper remedy would be for the aggrieved party, the Connection Company here, to disavow the contract and sue to recover as on a quantum meruit. Under the more liberal rules of pleading, especially in the case of action in assumpsit, to which this action by notice corresponds, where an action is founded upon a contract which is shown to be void, but where the. contract has been executed and a defendant has enjoyed valuable rights thereunder, a recovery upon quantum meruit under the general issue should be permitted upon the original action without requiring the institution of entirely new proceedings, if the pleadings are sufficiently broad and the proof is sufficient.” Applying this principle to the case at bar, and on the assumption that the contract is ultra vires, the plaintiff is entitled to recover under the common count of money had and received, as charged in the declaration filed. The only other assignment of error which merits consideration is, that the contract required the plaintiff to exercise her option within a reasonable time, and that a reasonable time had expired when she requested the defendant to repurchase. The expression “at any time,” used in the contract, really means a reasonable time. What is a reasonable time in which to exercise an option based on valuable consideration depends upon the facts and circumstances of each particular case.. There are only three facts shown [805] by the record which throw any light on the subject, i. e., (1) that the plaintiff refused to buy until the promise to repurchase was made; (2) the language of the promise itself; (3) that about the time the plaintiff elected to exercise her option to sell the market value of the stock had depreciated. The plaintiff was not willing to make the investment and assume the risk of a decline in the selling price of the stock. She knew nothing of how the corporate property was managed or of the possible profits from its various undertakings. She knew that these were all matters within the peculiar knowledge of the defendant, and that with this knowledge it agreed to assume this risk. The selling price of the stock declined within two years. The plaintiff thereupon exercised the right given her by demanding that the defendant perform its obligation. The defendant is now seeking to escape this obligation on the ground that the plaintiff failed to act in time. Nothing was said or done at the time of the sale, or prior to the time the plaintiff made her demand, which would indicate that either party intended for the option to be exercised promptly. The defendant, at the time it made the promise, did not see fit to require the plaintiff to exercise the right given her within any stated time. Simply because the stock declined in price within two years is not sufficient for us to hold, as a matter .of law, that a reasonable time has expired. This conclusion is supported by authorities from other jurisdictions. In Vickrey v. Maier, 164 Cal. 384, 129 Pac. 273, 274, the option was to repurchase the stock “at any time after six months.” Demand was made for repurchase after the lapse of nearly four years. Under the circumstances of that case, the court held that the demand was made within a reasonable time. [806] In Kaplan v. Reid Bros., 104 Cal. App. 268, 285 Pac. 868, 869, the language of the contract to repurchase was, “the company agrees that it will at any time, on thirty days notice, return you the par value of this stock, plus any accrued dividends.” This promise was made on January 24, 1921, and on February 10, 1927, the purchaser demanded that the corporation carry out its agreement to repurchase the stock. The court in disposing of that case said: “The use of the words 'at any time’ in the contract before us indicated an intention of the parties that the option given respondent was not one as to which there was any necessity or occasion for promptness in its exercise, but quite the contrary.” Upon the payment of the judgment, the defendant is entitled to have the stock certificates returned to it. Probably through oversight, no provision was made for this in the order entered by the trial court. It appears that the plaintiff has been, and is, ready, willing and able to surrender the stock certificates upon the payment of the amount due. The order of the trial court might have been, and doubtless would have been, so corrected if timely application had been made to it. To this extent the judgment of the trial court is amended, and so amended is affirmed. Amended and afirmed. Footnotes [1] AGREEMENT “This agreement made this- day of December, 1926, by and between the undersigned “Witnesseth: First—The undersigned hereby agree to form a syndicate for the purchase of shares of the United States Bond and Mortgage Corporation and Grace Securities Corporation Common Stock in the open market at a figure of forty-five dollars ($45.00) or less per share for the Grace Securities Corporation stock, and forty dollars ($40.00) or less for the United States Bond and Mortgage Corporation Common Stock. “Second—Each of the undersigned agrees to purchase and pay for when and as demanded his proportionate shares of such stock as may be purchased hereunder. “Third—The maximum amount of stock to be purchased hereunder shall be as many times one hundred shares as there are signers of this agreement, and the actual number of shares to be purchased within this limits and the [799] price to be paid therefor is to be determined by the Manager of the Investment Department of the Grace Securities Corporation by and with the advice of Messrs. Ross H. Walker and William R. Trigg, Jr. “Fourth—-This syndicate is to be started immediately, and each of us agrees to become bound thereunder, as soon as ten or more signatures are obtained hereto. “Fifth—Any party hereto may withdraw from the said syndicate at any time upon giving two weeks notice in writing of his intentions so to do to the Manager of the Investment Department of the Grace Securities Corporation, which said notice, it is hereby agreed, shall be considered as notice to each of the undersigned in which case the proportionate shares of stock held in the syndicate shall be paid for by the said withdrawing member. The said stock so withdrawn shall not be offered for sale for a period of four months from the date of withdrawal. “Sixth—This syndicate is to be dissolved when, in the opinion of the majority of the signers hereof, the object to be accomplished has been satisfactorily accomplished. “Seventh—It is agreed that the purchase of stock on the market shall [800] be made by or through the Investment Department of the Grace Securities Corporation, which said Corporation shall receive the usual commission therefor; and we further agree to settle for such purchase when required by said Corporation. “Eighth—Each member of the syndicate agrees to pay into the hands of the Manager of the Investment Department of the Grace Securities Corporation the sum of $500.00 to be used as a revolving fund for purchase of the syndicate. “Ninth—The agent is to have power to call for additional payment from members after consultation with the members of the syndicate. “Tenth—The signers of this agreement further agree with one another and with the Manager of the Investment Department of the Grace Securities Corporation that they will not either directly or indirectly deal, buy, or sell any share of stock of the Grace Securities Corporation or the United States Bond and Mortgage Corporation during the continuance of this agreement, without conferring with the syndicate managers.”