Jenkins

In this action the plaintiff sues to recover the sum of two thousand dollars upon an oral agreement of the defendant, made on or about the second day of March, 1906, to-repurchase from the plaintiff, at any time thereafter and upon the demand of the defendant, certain stock in the George C. Bornemann Company, a corporation, and pay therefor the sum of two thousand dollars; the consideration for said agreement being the investment on said date by the plaintiff of the sum of two thousand dollars in the stock of the said George C. Bornemann Company. No demand was made upon the defendant by the plaintiff to take the stock in question and no tender thereof was made until the twenty-seventh day of May, 1911, more than five years after the consummation of the agreement relied upon as the basis of this action. Upon this showing, taken in connection with the entire circumstances of the case as developed by the evidence, the trial court at the conclusion of plaintiff’s case granted the motion of the defendant for a nonsuit, upon the ground that the cause of action was barred by section 339 of the Code of Civil Procedure.

There is nothing in the nature of the contract or in the proofs…