125 P. 289 | Or. | 1912
delivered the opinion of the court.
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
“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, Indiana, 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 Patterson, 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
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.
If, in attempting to make an election, one commences an action in ignorance of substantial facts which proffer an alternate remedy, and the knowledge of which is essential to an intelligent choice of procedure, his action is not binding. He may, when informed, adopt a different remedy. But if he does not do this with reasonable dis
The case of Brady v. Daly, 175 U. S. 148 (20 Sup. Ct. 62: 44 L. Ed. 109), was an action brought to recover damages for the violation of a dramatic copyright. Daly first brought a suit in equity, in which he prayed for an injunction, and asked for an accounting of money and profits received by defendant. The motion for an in june
“The equity action was brought to enjoin the defendant from performing the play of After Dark, with the railroad scene in it, taken from the plaintiff’s play, Under the Gas Light, and the injunction was asked for on the ground that plaintiff’s injuries could not be accurately ascertained or computed, and compensation for such injury could not be made by damages; and as a portion of the relief complainant asked that the defendant be decreed to render a full and true account of all money and profits received by him. The decree in that case, however, did not direct the master to ascertain anything in regard to profits, no evidence was offered upon that subject, no finding was made thereon, and upon the coming in of the master’s report no final judgment or decree for profits was ever asked or rendered. In view of these facts, we think there was no election of an inconsistent remedy by the plaintiff in the action which would bar him from the maintenance of this action for the recovery of damages. * * ”
The relief sought by Rehfield in this action is practically the same as in the first suit. See Smith v. Bricker, 86 Iowa 285, 290 (53 N. W. 250).