Lewis J. Selznick Enterprises v. Harry I. Garson Productions

167 N.W. 1011, 202 Mich. 111, 1918 Mich. LEXIS 467

• Court: Michigan Supreme Court
• Decided: June 3, 1918
• Docket: Docket No. 56
• Status: Published

Opinion

Brooke, J.

(after stating the facts). 1. Have plaintiffs a plain and complete remedy at law? The motion to dismiss as to this ground must be considered as a demurrer to the bill and the demurrer admits all properly pleaded allegations in the bill to be true. Assuming the truth of the allegations contained in the bill it seems to us quite clear that the recovery of damages in the replevin suit would fall far short of affording plaintiffs a complete and adequate remedy. It is averred in the bill that defendant through its exploitation of the picture “Poppy” at a price or rental greatly below normal

“destroys and will destroy plaintiffs’ custom, credits and profits and causes and will cause irreparable injury to plaintiffs which cannot be adequately compensated for in damages.”

Under a situation such as was presented by the bill of complaint injunctive relief is clearly necessary to protect plaintiffs’ rights. Upon the question of accounting, too, the remedy in equity is more complete and better adapted to the ends of justice than the remedy at law. Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, and Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1. Where, as in the case at bar, fraud is charged, equity may assume jurisdiction even though plaintiff may have a remedy at law. 16 Cyc. p. 82; Homrich v. Robinson, 221 Mass. 308.

2. Under this branch of appellant’s motion it is stated that the material issue involved in the suit at bar will be determined in the case of Lewis J. Selznick Enterprises, Inc,, v. Harry I. Garson, et al., Court No. 59,604. Inasmuch as in the bill of complaint filed in that case no. mention is made of the picture “Poppy,” we think the claim without merit. It seems plain to us that plaintiffs are seeking relief in the case at bar which they cannot secure in the other case. This part of the motion amounts to a plea in abatement and should show that the whole relief sought in the second suit is obtainable in the first. 16 Cyc. p. 289.

3. Under the decision of Lewis J. Selznick Enterprises v. Garson, ante, 106, handed down herewith, this branch of defendant’s motion should be pleaded in bar and is not available upon a motion to dismiss.

4. Have plaintiffs because of the starting of the replevin suit elected their remedy and so estopped themselves from maintaining this equitable action? The mere starting of an action at law or a suit in equity does .not constitute an election. 15 Cyc. p. 264. Until election is completed the pursuit of both remedies will not deprive plaintiffs of either. Id.

A consideration of the pleadings in this case, as well as those in its companion case, to which reference has been made, convinces us that the motion to dismiss was properly denied.

Order affirmed, with costs.

Ostrander, C. J., and Bird, Moore, Steere, Stone, and Kuhn, JJ., concurred. Fellows, J., did not sit.