106 P. 331 | Or. | 1910
delivered the opinion of the court.
1. The statute (Section 391, B. & C. Comp., provides as follows:
“In an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of a cross-bill, which shall stay the proceedings at law, and the case thereafter shall proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree.”
If the defendant in a law action has an equitable right, which if worked out would defeat a recovery, he may not plead .it at law, but must go to the equity side of the court, and this he does by the filing of a complaint in the nature of a cross-bill in equity. The facts which he
No facts are stated in the complaint, which tend in any degree to defeat Bowne’s right to recover upon the note. Indeed, the only remedy sought, which would at all affect the action at law is contained in the closing sentence of the prayer, viz., that the court decree that Bowne has no right in law or equity to enforce payment of the note until he has* complied with the terms and conditions of the two contracts set forth in the complaint. But we are unable to see that the facts stated entitle him to any such relief. He does not seek a rescission of the contracts, but the whole tenor of the complaint is upon the theory of a right to a specific enforcement of the contracts against Bowne. This could not be had, except upon performance, or offer to perform all conditions precedent, one of which is the prompt payment of the several installments of the purchase price.
2. As we understand counsel, they contend upon one phase of the case that the facts alleged tend to show a failure or partial failure of the consideration for which the note was given. Even if that be true, the defense is available at law. The note was given for the first payment to be made under the contract on the purchase price of land, and it is averred in the cross-bill that it was taken and received by Bowne as the first payment. A few days afterwards Carroll, who gave the note, assigned to McKenney, for a valuable consideration, an undivided interest in the contract of purchase, and still
It is not material to consider whether the bill states any equity in favor of the Bonanza Improvement Company, for such company is not a party to the law action,
We are satisfied there was no error in sustaining the demurrer, and therefore the decree is affirmed.
Affirmed.