Opinion
Submitted on briefs May 12, 1931
Affirmed June 2, 1931
Appeal from Circuit Court, Multnomah County, HALL S. LUSK, Judge.
Suit by the Liquidators against Gibson Bowles and another. From a decree of dismissal, plaintiff appeals.
AFFIRMED.
Frank Hall Reeves, of Portland, for appellant.
Henry Bauer, of Portland, for respondents.
In Banc.
On or about January 20, 1930, defendants assigned to plaintiff a note and mortgage securing the same upon certain real property, upon which note there was a balance due and owing of $648.78; and in consideration therefor plaintiff paid and defendants received $504.24.
Plaintiff sued to rescind said assignment because of misrepresentations alleged to have been made by defendant, Gibson Bowles, as to the character, quality, and value of the mortgaged real property.
From a decree of dismissal, plaintiff appeals.
No novel question of law is involved in this case. Plaintiff is a corporation and its president testified that defendant, Gibson Bowles, made the representations as alleged in the complaint. The president of the corporate plaintiff also testified that in said defendant's presence he repeated the substance of the alleged representations to Mr. Slipp, plaintiff's manager and secretary. This was corroborated on the witness stand by Mr. Slipp. In every material respect, defendant, Gibson Bowles, contradicted plaintiff's witnesses.
Two considerations influence the writer in his conclusions herein. One is that the learned judge of the circuit court, who saw all of the witnesses, observed their manner and heard their testimony, immediately thereafter disposed of the case by dismissing it.
The other is that, if plaintiff believed the representations alleged to have been made by Mr. Bowles, its exaction of a discount of more than 22 per centum of the par value of the note is of such a nature as to justify a court of equity in requiring strict proof before granting plaintiff the relief sought.
Our conclusion is that plaintiff has not sustained its allegations with respect to the making of the alleged misrepresentations and its reliance thereon by the degree of proof which would justify a decree in its favor.
The decree of the circuit court is affirmed.