#### Bohumil Ruzicka, Appellee, v. Willy H. Lau, Appellant. Joseph Korinek, Appellee, v. Willy H. Lau, Appellant.

Gen. No. 23,286.

(Not to he reported in full.)

Gen. No. 23,287.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.

Affirmed.

Opinion filed October 2, 1917.

Statement of the Case.

Consolidated actions by Bnhumil Ruzicka and Joseph Korinek, respectively, plaintiffs, against Willy H. Lau, defendant, to recover on a promise by defendant to repay plaintiffs for stock purchased in the corporation in which defendant owned nearly all the stock. From a judgment for plaintiffs for $390 and $200, respectively, defendant appeals.

Eastman, White & Hawxhurst, for appellant ; Ralph R. Hawxhurst and Homer C. Dawson, of counsel.

Charles S. Hamilton, for appellees.

*327Abstract ef the Decision.

1. Corporations, § 149 * — when evidence shows promise by stockholder to personally purchase stock. Evidence held sufficient to sustain a finding that defendant, the owner of nearly all the stock in a corporation, orally promised' to employees purchasing stock to personally purchase the shares of the stock if such employees left the service of the corporation.

2. Corporations, § 142* — when promise by stockholder to repurchase stock is based upon consideration. A promise by a stockholder, who transfers his stock to a corporation, to employees purchasing stock that he will personally repurchase their shares upon their leaving the service of the corporation is based upon a consideration where the stock is in fact the property of such stockholder, and he derives direct personal benefit from the contract.

3. Frauds, Statute of, § 25* — when contract for repurchase of stock is not within. A contract for the repurchase of stock by a stockholder of a corporation from employees purchasing stock upon the latter leaving the employ of the corporation is not within the Statute of Frauds, because it is not to be performed within a year, where it is completely executed upon the part of the employees and the latter could at any time within a year have terminated their employment with the corporation.

4. Municipal Court of Chicago, § 13a* — what does not constitute material variance in fourth-class case. In a fourth-class case in the Municipal Court of Chicago, a variance between the pleading and proof as to the date of the execution of an oral contract sued on held not so material as to warrant a reversal where defendant was fully apprised of the nature of the claim against him.

5. Municipal Court of Chicago, § 28* — when claim of variance is too late. The claim of variance between a statement of claim and the proof is too late where the objection is first raised on appeal.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dever

delivered the opinion of the court.