189 Iowa 845 | Iowa | 1920
1. Personal notice was had on defendant Katherine Joens in this state. She is the only one who has answered, and is the only witness for the defendants. Notice was had upon the other defendants by publication, or service outside of the state.
It is true, as claimed by defendants, that, in the petition, plaintiff claimed misrepresentation and fraud Tby defendant Katherine, whereby he was induced to purchase from her certain shares of .mining stock, for a sum of money in excess of the value of such shares; but the petition also alleges that said defendant conspired with A. P. Stevenson and the others named, with the design and purpose of defrauding plaintiff, and that said Stevenson and his wife, and the other defendants, aided and abetted said Katherine
“Pocatello, Idaho, June 2, 1916
“James Gorman,
“410 E. 12th St.,
“Davenport, Iowa.
“I have option for two days on one thousand shares of Pac. stock, the mines Mr. Stevenson is director of and owns forty thousand shares. I can handle five hundred shares-myself, would advise you to take the other five hundred shares. We can get it through Mr. Stevenson at five dollars per share. This stock has never been on the market. We are in luck to get this as they pay first dividend in July. Other party waiting. Answer by wire.
“Mrs. íoens.
“Davenport, Iowa, June 2, 1916.
“Mrs. Katherine Joens, Pocatello, Idaho.
“You can draw on me for $2,500.
“J. F. Gorman.”
He then wrote her as follows:
“Dear Mrs. Joens:
“Your wire arrived last night 10:30. I replied to it at once stating I would take the 500 shares at $5.00 per share and would send draft today. I ,do not know who it should be made to. Am advised to have you draw on me through the above bank for the amount $2,500 and I will attend promptly to same. Hope it will make Mr. Stevenson rich and you and I some money, enough to keep us in the non-worry club. We look for you, Hazel and William along about the 20th. * * *
“J. F. Gorman.”
A draft was made on plaintiff,, signed by A. B. Stevenson, which plaintiff paid. About a month after this, ■ Mrs. Joens returned to Davenport, with her daughter and son, and stayed at plaintiff’s home for several weeks. She either gave or sent a certificate of stock to plaintiff, at the same time advising him to pay no attention to “Shares — 10c— each.” The certificate is set out in the record, and at the bottom thereof, this appears: “Shares — 10 cts. — each.” Thereafter, plaintiff had an investigation made, which indicated that the stock was of much less value than the price plaintiff paid. One report says:
“If your cousin paid $5.00 per share, he was buncoed out of at least $4.00 per share.”
Some of plaintiff’s witnesses testify that Mrs. Joens still claimed that the stock was all right, and promised to take the stock back, and return to Mr. Gorman his money, if she could get some insurance that was coming to her; but she failed to do so, and this suit was brought. Plain
The right of rescission, as between plaintiff and defendant, yet remains, and we do not understand that it is necessary to go into equity to rescind. The mining company is not a party to this suit. It is not our custom to go into details, where the case is yet to be tried.' It is enough to say, at this time, that the evidence is sufficient, though in conflict, to take the case to a jury, or raise an issue of fact on the merits of the controversy; and further, that, when the evidence was in, there were no grounds of equitable jurisdiction, and that the remedy of plaintiff was at law. As said, upon the statements made in the petition, there were; but under the evidence, there were none, and the court rightly so held. In other words,, plaintiff pleaded himself into equity. Appellant contends that, the suit having been brought in equity, and the court having assumed jurisdiction in that forum,- the jurisdiction will be retained, to settle all the rights of the parties, although such adjudication requires the establishment of purely legal rights and the granting of legal remedies which, but for such assumed jurisdiction, would be beyond its authority. It may be that this would be the rule if there were, in fact, some grounds for equitable jurisdiction, although others were of a legal nature. Appellee cites at this point Richmond v. Dubuque & S. C. R. R. Co., 33 Iowa 422, 488, and 2 Story on Equity, Sections 796, 797, as holding that, after equity has properly acquired jurisdiction for any purpose, it may retain the case and grant proper relief by way of damages, but that it cannot do so when jurisdiction is wanting for any, purpose recognized as a ground of equitable jurisdiction.
The real controversy between the parties in this case was the attempt to recover the $2,500.
2. It seems to be conceded by defendant, inferentially at least,, that there might be a theory upon which plaintiff would be entitled to recover damages, if he could satisfy a jury, by evidence, that he was entitled to recover. As to defendant, it is claimed, on her appeal, that the court should haAre dismissed the petition, because, as her counsel say,