*1 di- with judgmеnt remanded be reversed and cause should opinion, to enter a decree not inconsistent with rections CC., Ferguson Hyde, concur. ordered. so C., opinion by Bradley, adopted foregoing PER CURIAM: —The judges opinion All the concur. of the court. as the Magee v. Bank L. Mercantile-Commerce Andrew & Com
pany, Appellant 1121. . 124 February One, Division Thompson Young, C. P. Berry & Ron Thompson, Mitchell, appellant: Foubis for ald J. *2 Jr., Blair, respondent.
James T. *3 HYDE, agreemеnt repurchase C . This action on an oral bonds. Plaintiff claimed part it was-made defendant a purchase. for consideration The case was tried on an amended petition containing appeals five counts. case Premature Co., dismissed. v. Mercantile-Commerce Bank & Trust [Magee Mo. 559, Thereafter, 98 S. plaintiff all dismissed one, except counts сount $15,722.94, which he a had verdict for judgment and final plaintiff entered thereon for for that amount. appealed. Defendant has adopt plaintiff’s
We statement of the transaction, without use of quotation (Quotation marks. marks plaintiff’s quotations show record.) Magee Plaintiff “done had business” with defendant savings 1900 and had accumulated in its bank since a account of Magеe $14,000.” speculated “about had “never in bonds.” On July of the savings department teller in Donahue, a 3, 1923, James purchase that he suggestion with the Magee bank, “approached” Magee buy Dona- “to some.” bank, “advised” bonds from the in- department.” Donahue Magee “over to “sent” hue bond Riley, for Magee a securities salesman” “was who to one troduced Magee pretty á sizeable “had Riley He informed the bank. higher Magee rate savings account,” wanted a “in the amount” Magee money deposit Riley that “he had this told of interest. regular bought a bond bank.” The bank “did with our business— depart- manager “was of the bond Mr. Maestre bonds.” sold Riley Magee, Riley “These under” him. told “worked ment” just you money your want cash. are the same as When bonds you.” buy Mag'ee we will them from said bring these bonds in and Riley, “Well, right, Riley, but, all Mr. on second that sounds say you you buy get I thought, will back—but what these bonds will Riley depart- said, them?” “You come with down to bond me explain I manager ment will bond department have you.” that to
Riley Magee department,” Magee took to the bond “down and while rail,” Riley “sat outside went Maestre’s office. into After lapsе minutes,” brought Riley Magee of “about and “in Maestre manager” explain troduced him saying, as the anything “He will you Magee Maestre, want know.” says Riley said “Mr. he here buy will you these bonds back. What pay me for these bonds— example I paying premium am on most of bonds. these Will buy you them pay premium back and on them?” Maestre said Magee-, “No, say I can’t as to that,” produсed book *4 attempted explain to “about fluctuations in market.” Magee the tes tified, me,” “It was Greek to Maestre, and so he to “I said am interested in that anything book or else. What I am interested in is my these money bonds and you invested in them. buy Will these par? bonds back at I ... told him I was not interested in the book, but I was money, represented interested in the my as it life’s savings, I and had to bе careful. I knew a about having little bonds a fluctuating any value. I experience never had prior these. to I understood what fluctuation meant when said he the value would fluctuate; what he referring was premium.” to was Maestre, the an Magee’s swering question whether bank the the buy would bonds back par him, at said to “Yes Awy we will. you bring time these bonds in yon here and to sell them buy we will thеm back ufont par: at any you, or you other that buy bonds here.” Riley from pres was ent, gave and “he the me Mr. nod when agreed Maestre to buy them par any back at time I chose sell to them.” “Mr. Riley they said ‘ just any you the were same as cash and time want to sell them we ” Riley will take them back.’ “had not turned the bonds over to me buy he would that Maestre
yet I asked Mr. when —whether right We were closed. was . . The transaction back. . them ’’ yet. the bonds received I had not the transaction. in the middle of immedi made, bonds were repurchase the promise was the to After conversation by Riley Maestre. Magee and ately to delivered delivered were the bonds entered, and occurred, contract was Magee bonds by for the bank paid thе July amount 3, 1923. The on (Among these $14,000. par $14,824.28, value and District’s levee when the defaulted which levee bonds Texas $8000 away.) washed 90-day loan $14,000 23, 1928, Magee secured May On on purchased all of bonds gave the bank bank and as collateral in except had cashed July 3, road bonds $3000 from the bank due, purchased and bonds they other him when fell by $16,000. (Ma- which was value of all dates, pаr total of at later had $25,000, all which he par total value of gee bonds of the owned three defendant.) months This loan renewed purchased from twice renewed for the same August subsequently on During all 21, 1928, February 1929. period on November market value Magee “whether the no information had time day the any had down.” Prior to bonds started these due, Pow- Magee talked with Mr. went the bank and loan became to president bank, him renew the loan for ers, vice “asked Magee $25,000 offered Powers “the whole me and refused.” then he $14,000, that re- I loan worth had as collateral renew he afterward, May Shortly 18, 1929, Magee on went to fused.” deposit took safe box and which were there secured bonds upstairs Powers, who, had them at the on his desk Magеe Magee “placed (all them put up of) bonds had as collateral. you buy desk,” “said, Mr. on Powers’ ‘I want these bonds your par per agreement,” Powers, value as and Mr. said ’ ‘No, said, ‘Well, way I only will not. I out Then is for the said, right, court to go decide this case.’ ‘All He to it. I won’t ” May 18, 1929, Magee take them.’ day, On same went $25,000 put up First National Bank with “the bonds and security $14,000.” loan granted The lоan was previously Magee by the loan Mercantile-Commerce Bank and Company repaid day. to it him on action This was instituted June Maestre denied there was any agreement repurchase made to par. bonds at He said that the *5 repurchase bank did from bonds at customers market or actual value any at time. statement, alleged above italiсized to by have made
Maestre, is basis of this suit. Defendant’s answer contained a that, general denial; it further even if agreement stated such an was
1027' Limi five-year by Statute plaintiff’s (cid:127)made, was’barred suit duty of was the that “it als'o 1929);-and (Sec. tations S. 862/R. said repurchase to Company make on said’ plaintiff to demand make to failed plaintiff time, . . . within a reasonable bonds n . said n . . time, and reasonable any demand within such such an;/ demand.” plaintiff expired long . '. before -. offer ' ‘‘ u o y at buy par- them agreement; that we This ' " a granting óf them,” was the to- yoir sell . . . want any time 280, 243 App. Nunn, 211 Mo. v. plaintiff. Lane option resale to [See 47; Brooks Busch, 120 S. W. v. W. Suhre Mo. S.) 594 (N. L. R. A. 136 Pac. Co. (Wash.), v. Trustee an of such The nature (there option an to classified as rescind).] is, offer; th;at continuing a (like repurchase) to option option an within named continuing buy price to at to offer amounts a Tabor, 341 v. Busch, Lively supra; specified. the time [Suhre continuing a R. Such (2d) 62, 111 A. L. Mo. 107 S. 976.] consideration, irrevocable offer, if based sufficient ’ binding designated. Law- option period for whatever [American Contracts,-sec. Unquestionably, as Institute Restatement of says, plaintiff (because granting- there was sufficient consideration agreement part plaintiff’s was condition purchase) (or make option) to irrevocable. offer [Suhre Busch, supra; 60 R. 232 A. L. question The decisive is How note.] long buy offer at par continued; or, within plain what time required tiff acceptance? (There to make is no here raised that acceptanсe by manner of demand or as made.) tender when such tender was Defendant contends if that, required even suit was not five-year within the limitation period, an acceptance of such by must be made de mand within that time. says:
Plaintiff “The contemporaneous parol contract repur- chase the one, was a continuing categoric bonds unqualified, en- titling plaintiff to performance demand any accordingly, the time within which he was entitled to performance demand the'period limited by fixed the Statute of Limitations or to might what be considered a reasonable time.” says; Plaintiff further “Assuming necessary plaintiff perform- to demand a contemporaneous ance parol repurchase contract to the bonds within . reasonable time . . the contract was by entered parties with a clear intent postpone a demand performance and, indefinitely, accordingly, there is no arbitrary rule of law required that a demand should have been made within the period fixed the Statute of Limitations or held that such might was the extent of what be considered a reasonable time.”
Optiоns which fix no time have been held void either for indefinite- perpetuities. Option ness or as Contracts, [James secs. 218-222; *6 1028 result, this avoid To 28; 960, 303, 21 L. 48 C. sec. R. C. sec. J. 40.] to establish designated) time is tendency (when no has “According to the circumstances.
rule of a reasonable time under expressly limit is no authority, where time weight judicial of option, the law for the exercise fixed cоntract in a length is reasonable of time what time, fixes a reasonable law, depending on of fact or case, is of .a particular adopted by the 222; the rule this is also sec. circumstances.” [James, that this rule Contracts, We Institute, think see. American Law 46.] only contract intent of this just, and that the sound and is indefinitely. Plain reasonable time postpone demand for а theory, au as his instruction this tiff not submit the case on did tender finding that demand and a verdict thorized regard of time. to reasonableness without refused, (and own evidence is However, appears plaintiff’s since July on theory case) that the date of contract sued of his (this May 18, 1929 3, 1923, and that date of demand tender there was begun 13, 1933), think is ease where suit June we this if considered a jury, time for the even be no issue reasonable equitable performance. We hold specific rather than law case so period that could because we have the limit of concluded (by acceptance reasonable time within which to make be held to be a demand) orally granted, tender and kind under this period the Statute Limita case, the сircumstances this is applicable tions to oral contracts. in different several Decisions support ruling. Inv. states v. Crummer Brown Co. [Marsh (Kan.), 465, 835, note, 23 88 l. (2d) (followed Pac. A. L. R. see c. 846 (Kan.), (2d) 942); McCormick McCormick 33 McCollum v. Pac. Neimeyer (Ark.), 746; 219 W. (Cal.), v. Jenkins 132 Pac. v. Marsh 1051; 83 (Ga.), 1101; Poole v. S. E. Corker Trust Co. Norwood Twenty-Four v. Corp. (Mass.), (2d) Federal 3 N. 826; Street E. Beverly (Mich.), 270; (Miss.), v. 238 Richards Mitts v. Price N. 163; 92 Cauffiel, Pa. Super. 396; So. Wilkins v. 91 Dеnnett’s Ct. In re Estate (Wis.), 538; see, also, Boyd Buchanan, 220 N. W. 176 Mo. v. App. 56, 162 cited; S. W. L. and cases 17 R. C. sec. 324-326, 342-343; 37 C. J. 9.53-955, 964-966, secs. pp. Lovrien v. secs. (Iowa), Washington gone Oestrich 242 N. W. has further 57.] adopted the (see Limitations, rule of demand Wood on secs. *7 62; 933; Tabor, 352, (2d) v. 341 Mo. 107 S. W. (2d) Lively Boyd 162 Buchanan, App. 56, 1075; v. Mo. W. Beard Citi 176 S. v. 678; Piggott (Mo. (Mo. App.), 37 S. W. v. Denton (2d) zens’ Bank Savings App.), 618; Farm & Loan (2d). 46 S. W. Bisesi v. & Home .Boyd the (Mo. Both.the case and App.), Assn. 78 W. S. 871.] to necessary give to rise hold that “if a demand were Beard case action, the the demand should have within the cause of statutory period.” Jameson, 640,
Plaintiff relies 72 Mo. v. on Jameson and Cruse Eslinger case, (Mo. 235 S. W. In Jameson there App.), 496. the from, agreement was a written with cent pay per $600 six interest agreement a certain “The above date. This recited: сondition of the obligation such; that if the Elizabeth is above named Jameson shall during life, any demand or all of the above her natural it shall be above; due payable according to tenor the in case the of that of her any liquidated, death before or all of be the above shall my may portion shall with forever remain me and heirs her as of estate.” “the pointed payment unequivocally The court out that is any during conditioned at the the. demand made time life of payee;” made, all, “if not it was paid but so be ’’ payor. forever retained The court “that the be the held purpose intention, payor payee, both of the that- evident making be delay demand, there should the and the limit the agreed delay, upon by рarties, as the payee.” was the lifetime of the agreement Such a written whereby party one was to become the money, absolute got nothing, owner other which the and which specifically gave right the the real at any owner to demand it time during lifetime, very, her different from this- where purchase case securities made at market value and time speсifically no. designated for the an compel oral repurchase, exercise to. at a price. Eslinger fixed v: must Cruse a-case sim be.considered-as ilar to' an option that of. for' resale on employment, termination different, should, perhaps, be ruled on grounds than be case tween a purchaser -vendor having any- other relation between nоtes, them. 48 A. L. R. 625; 1182; see, also, 66 A. L. R. C. 37 [See J. 824-825, sec. R. 797-798, C. L. Plaintiff also 17 secs..164-165.] calls deposits. bank There it attention.to ride intended beginning from money transaction paid be depositor to the his representative any event, and, or. as in case bailments, of trusts or applied. a different rule is R. C. L. [17 162, p. 800, 167-168; 841-843, secs. C. J. 196-197; secs. see, sec. ; Co. ex rel. Commonwealth. also, R. note State A. L. Railroаd Pacific Missouri Reynolds, 213 W. 278 Mo. 111 S. Bank, 212 Mo. Continental National Co. v. 574.] case.- are not to this applicable Those rules - 207 N. W. In (Neb.), Rachman Plaintiff cites Grotte v. by. de .acceptance an resale upheld oral case, court - purchased stock. years plaintiff after a half made three and mand period applicable limitation the. within Apparеntly Limitations-, contracts. Wood [2 and cases not discussed necessity -that within of a demand length that “the say did. holding The court are not so noticed. the-pur-, of. elapsing time of demand between the sale time considered immaterial, except may as-it be price chase and interest is h good faith intention óf determining other wit evidence in op follow rule that such-аn parties.” does not This case - construed to mean tion, which -to-fix a definite will be- fails right *8 implies that a time; and such would a reasonable it also within -good Plaintiff further cites perpetuity. be cannot so hold. in We hold cases, Vickrey (Cal.), 273, such Maier 129 Pac. which- question” may affecting warrant “peculiar that circumstances the refusing general that “a in follow the rule time coinci the court to- deemed Limitations reasonable.” dent with the-Statute of be Of course, require might special which- would there be circumstances determining lengthening in shortening statutory period either or Meyer the question (Wis.), 227 reasonable time. Fuchs v. a [See A. R. (Minn.), 408, Andrews 212 N. W. 51 L. N. W. v. Andrews . 2 ] 54 selling corporation a This is where its own a case funds, every capital became part stock so that dollar a of its received depended and so that the'value the success of own upon the vendor’s enterprise, Meyer, fraud, Fuchs v. There is no claim supra.] [See misrepresentation distinguishing or concealment is-the feature - eases, many such and under such limitation circumstances our period 862, 1929, R. S. In extended. subdiv. Fifth.] [Sec. case, selling a municiрalities governmental bank was bonds of districts, bought benefit and sold at market Plain prices. which-it tiff knew that there in such Like fluctuations securities. market wise, plaintiff, by inquiry, kept reasonable could have informed as graduated-mainly market are prices. to such “Periods limitations quality reference to the evidence with nature and which upon contract sued must established.” be [Lively Tabor, supra.] is a shorter limitation period agree that reason for oral For there writing. five-year in than for those Our limitation ments for many allowed longer than is in contracts is states. oral Plaintiff d agreement his power (under in which he ha testified) to
1031
demanding his
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Division notes b, 119a 124 125) options. cases of such resale [Brooks (Wash.), Puget v. Trustee Co. Pac. 1152; Bridge 136 v. Harris Sound Dredging & (Wash.), Co. 38 Pac. case Brooks holds that,“it unimportant when a demand made” was- because “the right .upon contract;” action accrued once and that action brought if is barred within the limitation period. suit This ruling ease. While there "in'.the Harris seems tube no followed uni facts, Missouri decision on exact courts have state of onr formly five-year agreements bar applied the statute to actions Saxon, situations. after that in. somewhat similar [Landis Burns, 332 Mo. 105 Mo. Carter