Summary
In Oaks v. Taylor, 30 App. Div. 177, 179, 51 N.Y.S. 775, 776, plaintiff bought shares of stock, and defendant in writing agreed to buy them back at any time the plaintiff should desire him to.
Summary of this case from Gregg v. Middle States Co.Opinion
May Term, 1898.
Charles E. Patterson, for the appellant.
E. Countryman, for the respondent.
We think the Statute of Limitations did not begin to run from November 22, 1887, the date of the contract. Section 410 of the Code of Civil Procedure provides: "Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete." It is conceded that the case does not fall within any of the exceptions to the above section. The defendant's argument rests upon the assumption that since the plaintiff had the right to exercise his option at any time, therefore his right to make the demand was complete the instant the contract was made. But we think a distinction exists between the plaintiff's right to exercise his option, and the actual exercise of it; that the contract contemplates that he should have, at least, a reasonable time in which to exercise it; that until he should wish or desire the defendant to buy and take back the stock, his right of action did not arise or exist, and hence the condition precedent to the necessity for a demand did not exist. It would not be reasonable to hold that the right to make the demand was complete before the condition making it necessary had occurred.
The case is different from that of a promissory note payable upon demand, for there the promise of the maker to pay is absolute, and the right to make the demand of the maker is complete the instant the note is made. ( Mills v. Davis, 113 N.Y. 243.) Here the promise to buy back and pay is not absolute, but conditioned upon the plaintiff's wish or desire, which may never exist. In the case of the indorser upon the same promissory note a right of action does not exist against him until actual demand of the maker, and the Statute of Limitations does not begin to run until then. ( Shutts v. Fingar, 100 N.Y. 539.) That is, his liability is not absolute, but conditional, and the condition may never exist. Thus the case of the indorser somewhat resembles the case before us. (See Bunn v. Lett, 65 Hun, 43; King v. MacKellar, 109 N.Y. 215. )
We need not decide whether the Statute of Limitations did not begin to run until July 1, 1891, the date upon which plaintiff made demand of the defendant that he buy and take back the stock. The trial court properly held, upon the request of the plaintiff, that the plaintiff had a reasonable time in which to exercise his option, but also held that that right had no application to the question of the Statute of Limitations. We think the latter holding was error. Whether the plaintiff delayed making the demand after his election within a reasonable time to exercise his option matured, or delayed for an unreasonable time to exercise his option, are questions not before us.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and a new trial granted, costs to abide the event.