Johnson v. Curl
| Decision Date | 24 July 1934 |
| Citation | 147 Or. 530,34 P.2d 975 |
| Parties | JOHNSON v. CURL. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Umatilla County; Calvin L. Sweek, Judge.
On petition for rehearing.
Petition denied.
For former opinion, see 33 P.2d 237.
Will M. Peterson, of Pendleton (Raley Peterson Raley, Raley & Warner, and John F. Kilkenny, all of Pendleton, on the brief), for appellant.
Fee & Randall, of Pendleton, for respondent.
The appellant, C. C. Curl, has filed a petition for rehearing assigning two grounds for requesting it, as follows:
In support of his first contention the appellant charges that this court based its decision on Cripe v. Wade, 123 Or. 111, 261 P. 72, and ignored Hudson v. Goldberg, 123 Or. 339, 262 P. 223, and Bank of Freewater v Hyett, 137 Or. 193, 1 P.2d 1113.
In the case at bar the plaintiff in his reply did not allege any facts necessitating the interposition of a court of equity. The prayer of the reply, however, is as follows: "Wherefore, having fully replied to defendant's answer on file herein, plaintiff prays for judgment as in plaintiff's complaint on file herein, and for plaintiff's costs and disbursement of this suit, and for such other and further relief as pertains to equity and good conscience."
Because the latter part of this prayer is "for such other and further relief as pertains to equity and good conscience," it is contended by petitioner that the trial court should have disposed of the entire cause as a suit in equity, instead of dismissing defendant's answer in so far as it sought equitable relief and entering a judgment at law.
In our former opinion in this case we pointed out that counsel for the defendant, petitioner here, at the commencement of the trial stated that "it is agreed that the equitable phase of the case and the law action will all be tried out together." This clearly indicates that the plaintiff had not abandoned his action at law and that counsel for the defendant so understood plaintiff's position.
A short review of the two cases which counsel now contend we ignored in our former opinion will demonstrate their inapplicability to the situation here.
In Hudson v. Goldberg, supra, the plaintiff in his complaint alleged that he and the defendant had entered into a contract whereby the plaintiff was to purchase certain medical remedies and was to be given the exclusive right to manufacture and sell the same in a certain designated territory; and that pursuant thereto the plaintiff had executed and delivered to the defendant his promissory note in the sum of $2,500, which was not yet due, and had thereafter borrowed sums of money from the defendant, for which he had given shares of certain corporate stock as security. The complaint then stated that the defendant had breached the terms of the contract to be performed by him, resulting in damages to the plaintiff. The prayer of plaintiff was for a cancelation of the agreement, for an order restraining the defendant from disposing of the promissory notes and collateral securing the same, for the delivery of said notes by the defendant to the plaintiff, and for other relief.
To this complaint the defendant filed an answer in which he set forth the contract between himself and the plaintiff, the execution and delivery of a note for $2,500 by the plaintiff to the defendant, the securing of the same by a mortgage on certain real property, the execution of other notes for money borrowed, and the securing of the same, also the delivery of a stock of goods by the defendant to the plaintiff in an amount exceeding $12,000 in value for the purpose of permitting the plaintiff to sell the same and account to the defendant for the proceeds thereof. The answer averred that no accounting had been made by the plaintiff to the defendant.
The defendant for relief prayed that the plaintiff be required to account to him for all goods received, that plaintiff be restrained from disposing of the real property, and that the defendant recover from plaintiff a sum in excess of $11,000.
On the trial of the case the court entered a decree in favor of the defendant for his costs and disbursements, from which decree the plaintiff appealed. It is therefore obvious that the nature of that proceeding was altogether different from that of the case at bar. There, equity was invoked by the plaintiff in the first instance, and the defendant by the allegations of his answer also set forth facts which brought his defense and counterclaim within the cognizance of a court of equity.
In Bank of Freewater v. Hyett, supra, the plaintiff commenced an action on two promissory notes executed and delivered by the defendants Hyett, payable to the plaintiff. The defendants Hyett caused to be brought into the case as party defendants C. A. Crowe and David Harris. In their answer the Hyetts set forth the transactions between themselves and the plaintiff resulting in the execution by the Hyetts of the notes sued upon by the plaintiff, and other dealings growing out of the transactions above referred to, whereby a note in the sum of $2,400 was given by them to the plaintiff bank and by said bank transferred to the defendants Crowe and Harris.
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