State v. Swain , 147 Or. 207 ( 1934 )

Petition for rehearing denied May 22, 1934 ON PETITION FOR REHEARING (32 P.2d 773) In his petition for a rehearing and the brief accompanying it, the defendant contends that the evidence fails to support our statement (concerning the sale of stock to Karl Nelson) that "the contract governing the sale was drafted and signed by both parties in Oregon". Not desiring to sponsor a decision based upon an erroneous conception of the facts, we have again examined the transcript of evidence and shall now endeavor to show that our above-quoted statement is supported by competent, substantial testimony. It will be recalled that a series of advertisements appeared in Portland newspapers under the caption of Business Opportunities which offered employment to those who applied at 401 Dekum building, on condition that they make financial investments with the prospective employer; that Karl Nelson applied at the designated address; that he purchased twenty shares of stock in the corporation described in our previous decision; and that he was given employment. The defendant's brief states: "The record shows that a contract was drawn in Oregon." Thus, one portion of our quoted statement is given support. He argues, however, that the evidence fails to show that the contract thus drafted concerned the sale of stock. Since the trial court, upon the defendant's objection, excluded the challenged contract from the record, its language is not before us, but testimony given by Nelson in which he related the incidents which occurred upon his first visit at 401 Dekum building is as follows:

"A. Well, what took place was we began to talk about the job, and then they named the job they thought I would be fitted for, and they said they would get in touch with the manager of this corporation, and they telephoned — they telephoned to Mr. Swain and Mr. Swain came there in just a few minutes.

"Q. Did you make any contract with this defendant? A. Yes. He had a contract made out before — a stock contract, we had made out, I believe.

"Q. Did you execute a contract with him? A. Yes, sir.

"Q. And where did you make this contract out? Where? A. At Portland.

"Q. With this defendant? A. Yes, sir.

"Q. At that time did you have any conversation with this defendant? Did you discuss with him anything about the stock of the Pacific Phosphate Chemical Company?"

No answer was made to this question because a colloquy occurred between court and counsel, at the conclusion of which the following question was asked: "Did you have any conversation with this man with reference to purchasing any stock in this Pacific Phosphate Chemical Company?" To it the witness replied: "Yes, sir." Immediately after this contract, which, it will be observed, Nelson described as "a stock contract", was signed, he was given employment and still later the stock certificate was delivered to him. Neither the defendant, nor any other witness, contradicted this testimony nor gave any explanation at variance with it. Other portions of the record indicate that Nelson's experience with the defendant was substantially similar to that of the other witnesses who gave a more extensive explanation of the transaction; that is, that he was compelled to purchase stock in order to secure employment and that the transaction occurred in Oregon.

The petition for a rehearing is denied.

RAND, C.J., and BELT, J., concur.

KELLY, J., did not participate in this decision.