Huebener et al. v. Chinn
| Decision Date | 28 June 1949 |
| Citation | 186 Or. 508,207 P.2d 1136 |
| Parties | HUEBENER ET AL. <I>v.</I> CHINN |
| Court | Oregon Supreme Court |
1. Unless amended complaint showed that plaintiffs were entitled to no relief, either at law or in equity, demurrer to amended complaint was not sustainable. O.C.L.A. § 9-102.
Jury — Equity proceedings
2. Constitutional provision that right of trial by jury shall remain inviolate in all civil cases does not render jury trial available in equity proceedings. Const. art. 1, § 17.
Sales — Property — Presumed to pass
3. Property is presumed to pass when contract is made if goods are identified and nothing remains to be done other than delivery of goods in payment of price, except in case of cash sales where property does not pass until payment of price unless the condition is waived.
Account — Sales — Executory contract
4. Where contract for sale of restaurant business, including lease, fixtures and merchandise, provided that seller was to continue to operate restaurant during period afforded buyers to procure loan for payment of balance of purchase price, with provision for adjustment of purchase price on day of final payment in case merchandise should be increased or diminished, contract was executory only, and neither passed any title to buyers or created any fiduciary relationship prior to day of final payment, which would entitle buyers to accounting from seller in equity. O.C.L.A. § 71-101 to 71-180, 71-176.
Trusts — Contract to convey property
5. A contract to convey property is not a trust, whether or not contract is specifically enforceable.
Vendor and purchaser — Contract to convey — Not specifically enforceable — Purchaser — Personal claim
6. If contract to convey property is not specifically enforceable, purchaser acquires no interest in property before conveyance is made, but has merely a personal claim against vendor.
Trusts — Vendor and purchaser — Contract to convey property — Specifically enforceable — Purchaser — Equitable interest
7. If contract to convey property is specifically enforceable, purchaser acquires equitable interest in property, but relation between vendor and purchaser is not a trust but is more analogous to a mortgage.
Account — Equity — Jurisdiction — Account complex
8. A court of equity may assume jurisdiction of case in which accounting is sought even though defendant is not a fiduciary, provided, it satisfactorily appears that account is so complex that justice cannot be done without resort to superior equipment of equity court.
Account — Pleading — Fiduciary relationship — Accounting — Jurisdiction — Equity court
9. Where pleading avers fiduciary relationship and prayer seeks accounting, averments concerning fiduciary relationship may suffice to confer jurisdiction upon equity court without allegations that account was complicated.
10. Where defendant is not a fiduciary and cause is not of type over which equity has jurisdiction but an accounting is sought, averments concerning complexity of the account must be so specific that chancellor can see from them that he, and not a jury, should try issues.
Account — Complex — Absence of proof of fiduciary relationship
11. In suit by buyers of restaurant business, against seller, for accounting arising out of seller's continued operation of restaurant during period afforded buyers under terms of contract to procure loan for balance of payment of purchase price, neither pleadings nor evidence disclosed that account was so complex or difficult as to entitle buyers to resort to equity in absence of proof of any fiduciary relationship between parties. O.C.L.A. §§ 71-101 to 71-180, 71-176.
Discovery — Allegation — Without specific prayer for discovery
12. Allegation in complaint seeking accounting under contract for sale of restaurant business that defendant was "the only person who has exact knowledge as to property", etc., without a specific prayer for discovery, was insufficient to warrant relief of discovery, especially where plaintiffs availed themselves of provisions of statute and examined defendant under oath prior to trial. O.C.L.A. §§ 4-303, 10-401.
See 1 Am. Jur., 301
46 Am. Jur., 584
163 A.L.R., 238
3 A.L.R., 2d. 1322
1 C.J.S., Accounting, § 199.
Appeal from Circuit Court, Morrow County.
W.C. Perry, of Pendleton, argued the cause for appellant. On the brief were Randall, Perry & Wells, of Pendleton.
J.O. Turner, of Heppner, and John F. Kilkenny, of Pendleton, argued the cause for respondents. With J.O. Turner on the brief were Raley, Kilkenny & Raley, of Pendleton.
Before LUSK, Chief Justice, and BRAND, ROSSMAN and BAILEY, Justices.
Suit by Hans Huebener and others, doing business as Elkhorn Restaurant, against Edward Chinn, for an accounting. From adverse decree, the defendant appeals.
REMANDED.
This is an appeal by the defendant from a decree of the Circuit Court which, after having granted the plaintiffs an accounting, awarded them judgment against the defendant for the sum of $1,049.25 and also a "judgment and decree against the defendant for the delivery by defendant to plaintiffs of the following described merchandise: * * *" At that point there follows a long list of articles, of which the following are examples: "24 soda glasses"; "1 gallon sweet relish"; "3 gallons olives"; "3 boxes Cinco cigars". The defendant-appellant is one Edward Chinn, who, prior to April 5, 1946, was the owner of a restaurant located in Heppner. On April 4, 1946, he signed a bill of sale which transferred title to the restaurant to the plaintiffs-respondents, Hans Huebener, Velma Huebener and Ray Reynolds. The Huebeners, who are husband and wife, have acquired the interest of Mr. Reynolds and hereafter when we use the word "respondents" we will mean the Huebeners. Since April 4 the respondents have operated the restaurant. The transfer was made obedient to a contract signed by the parties February 28, 1946, which bound the appellant to transfer the restaurant to the respondents and Mr. Reynolds for the sum of $8,000.00, $2,000.00 of which was paid concurrently with the signing of the paper and the balance of $6,000.00 was rendered payable in about 45 days. Upon its payment the appellant was required to execute a bill of sale to the restaurant. Payment of the $6,000.00 was made April 4, 1946, and on that day the bill of sale was delivered.
The appellant present the following assignments of error:
1. "The Court erred in overruling the demurrer of the appellant to the amended complaint of the respondents."
2. "The Court erred in refusing the demand of the appellant for a jury trial."
3. "The Court erred in failing to sustain the appellant's demurrer to the respondents' evidence."
4. "The Court erred in granting any relief in equity to the respondents."
5. "The Court erred in including in the contract goods and merchandise of the appellant not included in the contract."
1. It will be observed that the first assignment of error is based upon a demurrer which challenged the amended complaint. The demurrer was predicated upon the ground "that the plaintiff has a plain, speedy and adequate remedy at law and the amended complaint does not state any cause of suit against the defendant, and further that said court is without jurisdiction in equity." In support of that assignment of error, the appellant does not argue that the complaint fails to state a cause, either at law or in equity, but only that the facts recited in the complaint did not entitle the respondents to any equitable remedies. Section 9-102, O.C.L.A., says:
"No cause shall be dismissed for having been brought on the wrong side of the court."
Unless the complaint showed that the respondents were entitled to no relief, either at law or in equity, the demurrer was not sustainable: Nelson v. Smith, 157 Or. 292, 69 P.2d 1072. It is clear that the demurrer was properly overruled, and that the first assignment of error is without merit.
We shall now consider the second and fourth assignments of error. The appellant contends that if the respondents were entitled to any relief, the law side of the court would have afforded them adequate remedies, and that the record shows nothing requiring the attention of a court of equity. He submits that he was entitled to a jury trial.
In the contract the appellant is designated as the first party and the respondents, together with the aforementioned Reynolds, as the second party. Omitting formal matters, the contract reads as follows:
And as and for the purchase price of said property, the parties of the second part do hereby promise and agree to pay the party of the first part the sum of Eight Thousand and No 100 dollars ($8,000.00) in the manner following: the sum of $2,000.00 upon the execution of this agreement, the receipt whereof is hereby acknowledged, and the further sum of $6,000.00 on or before thirty five days from the date hereof. It is understood that the parties of the second part are...
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