70 Colo. 500 | Colo. | 1921
delivered the opinion of the court.
IN this proceeding it is sought to prohibit further action on the part of the District Court of Larimer County in a cause there pending between Henry Schneider, plaintiff, and The Industrial Sugar Company, defendant. As ground
The complaint in the original case alleges in substance that the defendant company through its agents induced plaintiff to subscribe for certain of its shares of capital stock, and as payment therefor took his two notes, one for $625.00, which has been paid, and one for $1,875.00, which is still outstanding. That plaintiff was induced to execute the notes by false and fraudulent representations, and that the defendant company now threatens to force payment bf the second note. Plaintiff prays for judgment in the amount of the first note with interest; and that the remaining note be surrendered for cancellation, that defendant be enjoined and restrained from negotiating that note or from forcing plaintiff to pay same, and that in the event of the refusal of defendant to surrender the note, then for judgment for $1,875.00 in addition to the amount of the first note.
The sole question is whether the action is an equitable one in personam, for rescission, or in damages for ‘tort. From the complaint it is obvious that what plaintiff seeks is to be restored to the position he was in before the purchase of the shares. In Lathrop v. Maddux, 58 Colo. 258, 144 Pac. 870, the complaint alleged the purchase by plaintiff of a traction engine; that such purchase was induced by certain representations of defendant, which plaintiff relied upon, and which proved false. Plaintiff prayed judgment for a return of the money paid, and for the cancellation of his notes executed in payment of the balance of the purchase price. In discussing the nature of the action at page 262 this court approved the conclusion of the trial court that the suit was an equitable one to rescind the contract.
It is equally clear that the gist of this section is to rescind the contract for the purchase of the shares. Plain
Mr. Justice Teller and Mr. Justice Burke concur.