Topolos v. Skotheim , 126 Or. 683 ( 1928 )

From the evidence, which is too long to be recited here and which consists of many detached facts, we are clearly of the opinion that the defendants engaged in a barefaced conspiracy to cheat the plaintiff out of his property, and that this was accomplished by one of their number showing to the plaintiff a fine and valuable farm representing it to be the farm which was afterwards transferred by Adams, and that the charge in the complaint is fully made up. The whole transaction is redolent with the odor of fraud and deliberate rascality. It is contended by the defendants that, because Topolos knew when he brought the suit that the hotel property had been conveyed to a third person, this fact divests equity of jurisdiction and that his proper remedy was by an action at law for deceit or for money had and received. It is true Topolos, who was an ignorant man and could neither read nor write, admitted on the trial that he knew the property had been sold to someone, but did not know to whom. This is far from being evidence that he knew that a bona fide sale had been made. The ways of these defendants have been so devious that plaintiff would have been fully justified in believing that the transfer was merely colorable and one of the various artifices used by defendants to avoid the consequences of their fraud, as indeed it may have been.

The court gave them a chance to get hold of the property and return it which was administering good and substantial equity. It does not follow that the court in administering equity is precluded under proper circumstances from rendering a money judgment. Nor does it follow in every case that a court will refuse relief because there seems to be no other way of reparation except by rendering a money judgment, and this is especially the case since the passage of Section 390, Or. L., which provides:

"No case shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account."

In the case at bar there was no demurrer to the complaint and no plea of the jurisdiction of the court in any shape. The case was tried until all the testimony was in as though the pleadings had been absolutely perfect, but at the end of the testimony a motion was made to dismiss for want of jurisdiction in equity.

There was no application to compel plaintiff to amend his pleadings, but only a request that the court should do exactly what the statute says the court shall not do, namely, to dismiss the case, although defendants were undoubtedly aware, and could not have been unaware, of the fact of their reconveyance of the hotel lease to another party, and whether or not such conveyance was anything but colorable. They knew the inside facts of the transaction much better than this ignorant Greek whom they were defrauding, and were in a position to have taken advantage by answer in the first place if they had desired to do so, or by demanding a jury after the facts had been fully disclosed in the evidence. We are not disposed to consider this technical objection with any degree of patience. The fact that Skotheim had secured a discharge in bankruptcy did not exonerate him from any responsibility on account of fraud or misrepresentation.

The decision of the Circuit Court is eminently just and is affirmed. AFFIRMED.

RAND, C.J., and ROSSMAN, JJ., concur.

COSHOW, J., not sitting.