Rehfield v. Winters

• Decision Date: 30 July 1912
• Citation: 125 P. 289,62 Or. 299
• Parties: REHFIELD v. WINTERS.
• Court: Oregon Supreme Court

125 P. 289

62 Or. 299

REHFIELD v. WINTERS.

Supreme Court of Oregon

July 30, 1912

Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.

Action by E.T. Rehfield against L.S. Winters. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint alleges, in substance, that on the 17th day of January, 1910, plaintiff, who owned a stock of groceries stores fixtures, and furniture, agreed with defendant to sell the same for $1,050; that, for the purpose of cheating and defrauding plaintiff, defendant represented that he was the owner of a second mortgage, 6 per cent. gold bond, issued by the Churubusco Water & Light Company of Churubusco, Ind., for the sum of $200, being No. 11, dated May 1, 1899, upon which the interest had been paid to November 1, 1909, and a first mortgage, 5 per cent. bond of the North Jersey Gas Company of Paterson, N.J., for $500, being No. 329, dated February 1 1901, upon which the interest had been paid to August, 1909 that the bonds were each secured by a mortgage covering all of the property of the respective companies, and each worth its full face value; that defendant had collected the interest thereon for the last semiannual payments; that defendant well knew such representations to be false and fraudulent; that the bonds were of no value, and that they were not liens upon any property; that, relying on defendant's representations, plaintiff sold his stock of groceries and furniture, and received the bonds on account thereof at a valuation of $700; that he was thereby damaged in said sum.

Defendant answered, denying the allegations of the complaint, and further set forth that in February, 1910, plaintiff commenced a suit against defendant to rescind the contract of sale, and to be restored to the possession of the property, based upon the same facts as are alleged in the complaint. The gist of the answer is as follows: "That said plaintiff, in and by the commencement of said suit, by the filing of said complaint hereinbefore set forth, chose and elected to proceed against this defendant by rescinding said contract for the sale of said personal property and securing the possession of said personal property. ***" It is further alleged that defendant, Winters, appeared in the suit and filed his answer; that on the 1st of June, 1910, upon the trial thereof, plaintiff offered evidence in support of his complaint, which was objected to by the defendant's attorneys; that the objection was sustained by the court, and a judgment rendered in favor of the defendant, dismissing the plaintiff's complaint; that plaintiff, having elected to so proceed, cannot now require defendant to respond in damages. The complaint in the equity suit was set out in haec verba in defendant's answer.

Plaintiff filed a general demurrer to the defendant's further and separate answer, which was sustained. The cause was tried by the court, without the intervention of a jury. At the close of plaintiff's testimony, defendant moved the court for a nonsuit, which motion was denied. This ruling the defendant assigns as error. The circuit court made findings of fact in favor of plaintiff, substantially as alleged in the complaint, and rendered judgment thereon against defendant for the sum of $739.29.

Charles E. Lenon, of Portland (Jeffrey & Lenon, of Portland, on the brief), for appellant.

W.Y Masters, of Portland, for respondent.

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

Upon an appeal from a judgment in an action at law, where the cause was tried by the court, without a jury, we can only examine the record to see whether or not there is any competent evidence to support the findings of the trial court. The weight and value of the evidence were for that court. Salem Traction Co. v. Anson, 41 Or. 562, 67 P. 1015, 69 P. 675; Salem v. Artson, 40 Or. 339, 67 P. 190, 56 L.R.A. 169, 91 Am.St.Rep. 485; Astoria Railroad Co. v. Kern, 44 Or. 538, 76 P. 14; Courtney v. Bridal Veil Box Factory, 55 Or. 210, 105 P. 896; Dial Ranch v. May Land Co.,

119 P. 758.

Considering the evidence from this point of view, E.T. Rehfield, plaintiff, testified, in substance: That at the time of the transaction Winters offered to give the bonds in payment of $700 of the purchase price. That Winters stated that he had had the bonds for some time, and that the town in which one of the bonds was issued had grown, and was getting along fine; also that the interest was always paid promptly, and that the bonds were just as good as gold. That Winters said: "Why, I know that they are good; if they are not good, I am here to make them good. I am responsible." Plaintiff states that at the time of the sale he did not make any effort to find out whether the bonds were good, but took defendant's word for it; that when he was informed of their worthlessness, and of the fact that no interest had ever been paid thereon, he consulted with his attorney and proceeded to take possession of the store; that he afterwards learned that Mr. Winters owned considerable property. Mrs. E.T. Rehfield testified, substantiating her husband's evidence as to part of the statement made at the time of the negotiation.

The deposition of Elmer E. Gandy, a banker, who had resided in Churubusco, Whitney county, Ind., for 33 years, was read in plaintiff's behalf. It showed that he was acquainted with the business of the Churubusco Water & Light Company, which was organized under the laws of Indiana, for the purpose of taking over the water and light plant of the town of Churubusco; that the company continued business for only one or two years; that he was familiar with the property owned by the corporation, but that they did not own any now that he knew of; that he identified the $200 bond; that the interest coupons had been dishonored at the bank at different times; that the bond is worthless, and never had any market value.

The deposition of Charles C. Scott, an attorney at law, of Paterson, N.J., and witness for plaintiff, is to the effect that he had always resided in the above city; that he was one of the incorporators of the North Jersey Gas Company, a corporation organized under the laws of the state of New Jersey; that he had offices in the same suite with the company's attorney; that he identified the $500 bond; that he had no recollection of any interest having been paid, and that the bond had no market value at that time; that the company was organized to do business in the city of Paterson, N.J., but that it had never supplied the city with any gas, or, to the best of his knowledge, any other place.

Defendant Winters testified in part that he purchased the bonds for value, and that he told plaintiff that he did not know their value, but that he could inquire in regard thereto; that he carried them just as he did money; that he gave plaintiff the name of the man from whom he got the bonds.

It is first contended by counsel for defendant that there was no legal evidence showing that the representations of defendant were false. The last two witnesses resided at the respective places where the bonds were issued. They were business men acquainted with the corporations, and likely to know of the latter's property. Their evidence is to the purport that neither of these...