Van de Wiele v. Garbade

• Decision Date: 30 January 1912
• Parties: VAN DE WIELE v. GARBADE.
• Court: Oregon Supreme Court

120 P. 752

60 Or. 585

VAN DE WIELE v. GARBADE.

Supreme Court of Oregon

January 30, 1912

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by D.L. Van de Wiele against T.A. Garbade. From a judgment for plaintiff, defendant appeals. Affirmed.

It is substantially alleged in the complaint that about May 21 1906, the defendant offered for sale to the plaintiff 37 1/2 shares of the capital stock of a corporation, known as the Portland Coffee & Spice Company, for the price of $3,750, the par value of the stock. The gravamen of the complaint is contained in the third paragraph, as follows: "That, as an inducement to plaintiff to purchase said capital stock the defendant falsely and fraudulently, and for the purpose of deceiving the plaintiff, and to induce plaintiff to purchase said stock, represented to plaintiff that said capital stock of said corporation was worth more than the par value, and that the business of said corporation was in a good and flourishing condition, and upon a paying basis, and that the stock of goods and other assets of said corporation would inventory to at least equal the par value of the stock of said corporation, over and above all debts and liabilities of said corporation." The complaint further charges that the representations were false, and were known by the plaintiff to be false; that plaintiff relied upon them being true, and, upon the belief that they were true, by reason of those representations, plaintiff was induced to and did purchase of the defendant the stock in question, and paid therefor the full sum of $3,750. The falsity of the representation, and defendant's knowledge of that falsity, are specifically charged in the complaint. The plaintiff avers that he had no knowledge of the actual condition of the corporation, or of the untruthfulness of the representations, until some time after the purchase of the stock. He then states, in substance, that, having learned that the representations were untrue, that the corporation was insolvent, and the capital stock worthless, he tendered to the defendant the stock, properly indorsed, and demanded a return of his money, all of which was refused. As a final allegation, he says: "That, by reason of said representations, plaintiff was induced to purchase said stock, and he was and is thereby injured in the sum of $3,750, with interest thereon at the rate of 6 per cent. per annum from the 21st day of May, 1906." The entire complaint was traversed by the answer, except that the defendant admitted plaintiff had paid him $3,750, and that the shares of stock were issued to plaintiff. After alleging in substance, that it was not until April 3, 1907, that the defendant had made known his dissatisfaction with the purchase of the stock, and had offered to return it, demanding the purchase price, the defendant alleges an estoppel against the plaintiff substantially on the ground that the latter made the purchase about May 2, 1906, became familiar with the conditions of the corporation, and kept the stock until April 3, 1907, before offering to return it. The new matter in the answer was materially traversed by the reply. By consent, the action was heard before the court without a jury, and the findings having been made in substantial conformance with the complaint, the defendant appeals from the consequent judgment.

John F. Logan and John C. Shillock (I.N. Smith, on the brief), for appellant.

Ralph E. Moody, for respondent.

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

The appellant seems to proceed in this court as if the cause were one of equitable cognizance, while the respondent contends that it is an action at law. The distinction between mere forms of action at law has been abolished in this state by our Code (L.O.L. § 1); but the difference between actions at law and suits in equity is still maintained. Ming Yue v. Coos Bay Railroad Co., 24 Or. 392, 33 P. 641; Becannon v. Liebe, 11 Or. 443, 5 P. 273; Willis v. Crawford, 38 Or. 523, 63 P. 985, 53 L.R.A. 904; State ex rel. Taylor v. Lord, 28 Or. 498, 43 P. 471, 31 L.R.A. 473.

The differentiation of characteristics pertaining to actions at law and suits in equity is grounded, in a general sense, upon the nature of the relief desired. It may be thus stated: Actions at law include those cases where the relief sought consists in the direct recovery of certain real or personal property, or some amount of money only. Suits in equity arise when the requisite relief cannot be adequately administered by an action at law, by reason of the universality of its results in the recovery of money or property only. Van Santvoord's Equity Practice (3d Ed.) p. 25. Under these principles, the present litigation is clearly an action at law, because it is for recovery of damages only. The remedy at law is amply adequate to obtain the only relief that can be had in the class of actions stated in the complaint.

It being an action at law, the findings of the court therein are deemed to be a verdict. L.O.L. § 159. There is no bill of exceptions in the record; hence we can only examine the case to see whether there is any competent testimony to support these findings. Salem Traction Co. v. Anson, 41 Or. 562, 67 P. 1015, 69 P. 675; City of Salem v. Anson, 40 Or. 339, 67 P. 190, 56 L.R.A. 169, 8 Mun.Corp.Cas. 701; Astoria Railroad Co. v. Kern, 44 Or. 538, 76 P. 14; Flegel v. Koss, 47 Or. 366, 83 P. 847; Seffert v. Northern P. Ry., 49 Or. 95, 88 P. 962; Courtney v. Bridal Veil Box Factory, 55 Or. 210, 105 P. 896.

In consonance with his theory that this is a suit in equity, the defendant has brought here what purports to be a transcript of the testimony heard at the trial, certified by an official stenographer, and liberally interspersed throughout with the "mutual altercations" of counsel, the remarks of the court, and great numbers of the statement, "We except to the ruling of the court," and the like. This is not certified or identified in any manner by the trial judge, and does not constitute a bill of exceptions, so far as to authorize us to consider every technical objection that might be unearthed by a detailed search through the mass of papers thus returned. Eaton v. Oregon R. & N. Co., 22 Or. 498, 30 P. 311; Tucker v. Salem Flouring Mill Co., 15 Or. 585, 16 P. 426; State v. Jarvis, 18 Or. 366, 23 P. 251; Janeway v. Holston, 19 Or. 98, 23 P. 850; Reynolds v. Jackson County, 33 Or. 422, 53 P. 1072; Fiore v. Lass, 22 Or. 202, 29 P. 435; State v. Drake, 11 Or. 396, 4 P. 1204; Nosler v. Coos Bay Nav. Co., 40 Or. 308, 63 P. 1050, 64 P. 855; Baker County v. Huntington, 48 Or. 593, 87 P. 1036, 89 P. 144; Bigelow v. Columbia Min. Co., 54 Or. 453, 103 P. 57, 1007. However, as counsel on both sides made liberal quotations from the reporter's extended notes of the testimony, we have considered them only for the purpose stated.

In Scott v. Walton, 32 Or. 460, 464, 52 P. 180, 181 this court laid down the rule, in the opinion by Justice Bean, as follows: "A party who has been induced to enter into a contract by fraud has, upon its discovery, an election of remedies. He may either affirm the...