Russell v. Betts , 107 Ark. 629 ( 1913 )

Wood, J.,

(after stating the facts). This court, in Stifft v. Stiewell, 91 Ark. 445, held that a contract for the sale of corporate stock for the amount of $30 or more, is within the statute of frauds. Section 3656, of Kirby’s Digest. The several complaints under consideration disclose a contract entered into between the several appellants and the appellees, whereby the latter, in consideration that the appellants would not sell their stock to Smith, agreed that in case the corporation became insolvent, they would pay appellants the amount of the value of their stock and interest thereon, from the date of the contract until the date upon which the corporation became insolvent. This transaction was tantamount to the sale of the stock of the -several appellants to the appellee upon condition. The appellees, upon certain contingencies, which appellants alleged existed, agreed to pay appellants the par value of their stock with interest. While the complaint does not allege that the stock was to be delivered upon the payment of the amounts specified, an intention upon the part of the appellants to deliver upon the payment for the stock would necessarily be implied. Under the contract when the condition arose, upon which the payment was to be made, the presumption would be that when the payment was made that the stock would be delivered to appellees, the purchasers thereof.

We are of the opinion that the complaints state, what in law amounts to a conditional sale of the stock, and as the stock was more than $30 in value, the transaction was within section 3656 of Kirby’s Digest (Statute of Frauds), the same being an oral contract. The ruling of the court sustaining the demurrer to the complaint and its judgment dismissing the same, is therefore correct, and is affirmed.

Kirby, J., dissenting.