Koehler v. Dennison

• Decision Date: 28 July 1914
• Citation: 143 P. 649,72 Or. 362
• Parties: KOEHLER v. DENNISON ET AL. [d]
• Court: Oregon Supreme Court

143 P. 649

72 Or. 362

KOEHLER v. DENNISON ET AL. ^[d]

Supreme Court of Oregon

July 28, 1914

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Suit by A. E. Koehler against Ed Dennison and others. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit by A. E. Koehler against E. Dennison and J. I. Hull to cancel a bill of sale of personal property and to recover the sum of money paid therefor. The complaint charges, in effect that the defendants, having previously learned that the plaintiff had on hand money exceeding $1,025, conspired to cheat and defraud him out of that sum; that on February 17 1913, the plaintiff was ill, and in consequence thereof was weak in body and mind, at which time the defendants overpersuaded him to deliver to Dennison $1,025 for a bill of sale of barber chairs, glasses, fixtures, etc., which property was then practically valueless; that, pursuant to such conspiracy, the money was obtained by fraud, in that the defendants falsely represented to plaintiff that if he would pay that sum for the property and take possession of the barber shop at No. 205 Morrison street, Portland, Or., then conducted by Dennison, he would, as soon as the sale was consummated, secure a lease of the premises, and by continuing the business, be able to earn therefrom $5 and $10 a day above all expenses; that such representations were false and so known to be by the defendants, who made them for the purpose of defrauding the plaintiff; that he was ignorant thereof, but, relying thereon, was induced to pay the sum stated for the property; that after obtaining the title thereto he discovered, by conducting the business, that instead of daily clearing the sums so asserted, he lost from $10 to $15 a week; that he was unable to secure a lease of the premises, and soon after taking possession thereof he was ejected therefrom; that he tendered to Dennison a good and sufficient bill of sale retransferring to him the title to the property mentioned, and deposited such written instrument with the clerk of the circuit court for him. A motion to make the complaint more definite and certain and to strike out parts thereof was denied, and a demurrer to the initiatory pleading, on the ground that it did not state facts sufficient to constitute a cause of suit, was overruled whereupon the defendant Dennison filed an answer admitting the sale of the property for the consideration stated, but denying all other averments of the complaint. For a further defense it is alleged that the plaintiff has an adequate remedy at law; that he has rendered it impossible to place Dennison in status quo, in that his misconduct caused him to be dispossessed of the barber shop, thereby destroying the good will of the business; that by reason of the sale the plaintiff remained in the possession and control of the business more than six weeks, during which time he made no complaint to Dennison, by reason whereof he acquiesced in the transaction and is estopped by his laches from asserting that he was defrauded.

The reply put in issue the allegations of new matter in the answer, and, the cause having been tried, findings of facts were made substantially in conformity with the averments of the complaint, and a decree having been given as prayed for therein, Dennison appeals.

B. E. Haney and B. H. Goldstein, both of Portland (Joseph & Haney of Portland, on the brief), for appellants. Morris A. Goldstein and F. S. Senn, both of Portland, for respondent.

MOORE J. (after stating the facts as above).

It is contended that errors were committed in denying the motion and in overruling the demurrer. The averments of the complaint as hereinbefore given are not arranged in the same order as originally set forth, but it is believed that the allegations of the pleading thus assailed are substantially stated, and that the facts narrated are not so vague or uncertain that the meaning thereof could not have been readily comprehended, or that any parts of the complaint should have been stricken out.

For a redress of his grievance the plaintiff had a concurrent remedy at law and in equity. In an action at law for affirmative relief he might have treated the transaction as rescinded and recovered back the consideration paid for the property. By this means he would still have held the written evidence of a transfer of the title to the goods, to cancel which bill of sale, though not under seal, the remedy at law was not so adequate and complete as that which equity affords. Benson v. Keller, 37 Or. 120, 60 P. 918; Olston v. Oregon Water Power & Ry. Co., 52 Or. 343, 96 P. 1095, 97 P. 538, 20 L. R. A. (N. S.) 915. What is here said is not intended to contravene the rule which permits a party who seeks defensive relief at law to set up in his answer the plaintiff's fraud, and thereby defeat an action brought to enforce the alleged fraudulent obligation. Mael v. Stutsman, 60 Or. 66, 117 P. 1093. No error was committed in overruling the demurrer.

Considering the case on its merits, the testimony shows that at the time of the trial the plaintiff was 73 years old. He was not a barber. He had been engaged in raising fruit, but, having lost a leg, he was obliged to seek other employment, which he found in conducting at Portland a confectionery store. Having sold that business, he tried to find a new location where he could pursue the same occupation. While seeking another place he on February 15, 1913, met the defendant Hull, a barber, who said he was engaged in securing for others business locations, and could find a place for him, if he would wait, thereupon taking him into a barber shop conducted by Dennison, where the latter told him he intended to quit the business in order that he might deal in horses. The plaintiff testified that Dennison then said to him:

"If you buy this shop you can make from $5 to $10 a day clear. All you have to do is to sit here and count your money."

This witness, referring to the defendant Hull, said:

"I told him that if I bought it (the shop) I should want a lease. Well, he asked Mr. Dennison and Mr. Dennison asked Mr. Soloman [the lessee of the premises]. They had talked it over, and Mr. Soloman said: 'Why, of course, you will get a lease whenever you ask for it.' He said: 'Whenever you ask for a lease there will be a lease forthcoming.' 'I don't want to cheat a cripple like you.' I said: 'I don't want to be cheated either.' When I made up my mind to buy this barber shop I made up my mind never to buy it without a lease, and I bought it with that understanding."

The sale was concluded February 17, 1913, whereupon plaintiff paid the sum agreed upon for the property, took possession of the shop, and paid Mr. Soloman $90, as the rent in advance for a month. The plaintiff, during that time, was offered $800 for the property which he had secured from Dennison, and, desiring a lease of the premises, he applied to Soloman, who refused to grant the request, and on March 15, 1913, two days prior to the expiration of the term for which he had paid the rent, Soloman commenced an action against him to secure possession of the shop. This action, however, was subsequently dismissed.

The plaintiff, referring to one of the defendants, who at the time the sale was made promised to remain in the shop and assist in conducting the business, testified as follows:

"And this Joe Hull, he was trying all the time to get me out of there, to get another place; and then him and another man they went up and they rented a place on Sixth and Burnside, and I went up there, and I didn't make anything up there neither. I didn't make the rent on either place."

The value placed by Hull on the entire property was only $700, while another man who knew the worth of the goods estimated it to be not more than $300. The profits of the business were not what the defendants had represented. Their witnesses, explaining the reason therefor, stated that the plaintiff increased the price of shaving from 10 cents, the cost prevailing when he secured the property, to 15 cents, and that he permitted five of the eight barbers employed by Dennison to leave the shop, and did not get others to take their places.

The plaintiff did not make any demand upon Dennison to repay any part of the money which he had received before bringing this suit. He testified that he told Dennison that he had misrepresented the property and the value of the business, whereupon the latter remarked that, having sold the goods, he paid Hull a commission for finding a purchaser, and he would not return the money.

It appears that after plaintiff quit the shop the premises were immediately leased to another barber. Dennison, soon after concluding the sale with the plaintiff, obtained another barber shop and conducted that business, though it will be remembered he told Koehler when he made the bill of sale that he was retiring in order to deal in horses.

Soloman, as defendants' witness, admits that he told the plaintiff he did not desire to cheat a cripple, The defendants deny nearly all the testimony given by the plaintiff, and each asserts upon oath that no commission was paid to Hull.

No testimony was offered tending to show that when the bill of sale of the property was concluded the plaintiff was ill or weakened in body or mind. A perusal of his testimony however, shows that he is peevish and irascible, evidencing senility. Neither of the defendants made any representations respecting the value of the goods sold, but only as to the future profits that could be obtained by conducting the barber business. Nor did they in any manner do anything to prevent the plaintiff from making a careful examination or due inquiry as to the value of the property or the...