North American Securities Co. v. Cole

• Decision Date: 28 November 1911
• Citation: 61 Or. 1,118 P. 1032
• Parties: NORTH AMERICAN SECURITIES CO. v. COLE.
• Court: Oregon Supreme Court

118 P. 1032

61 Or. 1

NORTH AMERICAN SECURITIES CO. v. COLE.

Supreme Court of Oregon

November 28, 1911

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by the North American Securities Company against Leonard Cole. From a decree for defendant, plaintiff appeals. Affirmed.

See also, 118 P. 176.

This is a suit to enjoin defendant from prosecuting an action at law the same being the case of Leonard Cole v. Willow River Land & Irrigation Company, 118 P. 1030, decided at this date. The facts out of which that litigation arose preface our opinion in that case. The additional facts necessary to a correct understanding of the present contention are as follows:

Plaintiff claims that it is a large stockholder in the Willow River Land & Irrigation Company; that it has entered into a contract to finance the company by selling its bonds; that before doing so it caused an examination to be made of the records of Malheur county; that a conveyance was there recorded, from Cole and his associates, to the lands and water rights mentioned in the statement prefixed to the case of Cole v. Willow River, etc., Company, in which it was stated that the grantors had received full payment by the company of the purchase price for the land and water rights therein described. Plaintiff further alleges that Cole was in the employ of the company and active in his efforts to induce plaintiff to invest in its undertakings, and was frequently in consultation with plaintiff's agents, in regard to the condition and title of the property of the Willow River Company, and that he never at any time informed such agents that he had any claim against the company, but by his acts and statements led plaintiff's agents to believe that he had been paid for the interests conveyed by him and his associates, and stated to one of the agents that he had been paid in full for his land; that such statements were made with intent to mislead plaintiff; that it has thereby been misled to its great damage; that the Willow River Company has no means of paying a judgment, except from the sale of its property; that plaintiff, in order that the company may be enabled to continue in business and carry out its projects will be compelled to advance money to pay any judgment that Cole might recover, and, as a stockholder, will be compelled to pay 50 per cent. of any judgment obtained by Cole in the premises; and that the Willow River Company has no defense to the action at law.

A motion to dismiss for want of equity in the bill was overruled. Defendant answered, and on January 23, 1911, when the case was called, plaintiff moved for a continuance on the ground of the absence of material witnesses. The motion was overruled and the trial proceeded, resulting in a decree in favor of defendant. Plaintiff appeals.

Oliver O. Haga (Geo. E. Davis, Wheeler & Hurley, and Richards &amp Haga, on the brief), for appellant.

M.D Clifford and A.A. Smith (John L. Rand and Wm. H. Packwood, Jr., on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

Assuming without deciding, that the complaint states facts sufficient to constitute a cause of suit, the testimony of the witnesses, mentioned in plaintiff's affidavit for a continuance, would have been in some degree material; but the affidavits are vulnerable to the same objection suggested in the case of Cole v. Willow River, etc., Company, 118 P. 1030, just decided. They give no reasons why counsel expect to prove by the witnesses named the facts that they assume they will testify to. If they have stated to the affiant or to any person that these facts existed or have communicated the substance of the alleged testimony to affiant by letter or telegram, or in any way, the court should have been informed of the source of affiant's information and the grounds of his belief that the absent witnesses would, if present, testify as he says he believes they will. It is true the affidavit states that affiant bases his statement upon letters or telegrams received by him from the alleged witnesses upon other subjects, but such alleged...