On Application for Rehearing. In a petition for rehearing respondents complain that by directing a judgment foreclosing the bonds *Page 23 pledged to secure the payment of the "convertible improvement notes" this court departed from the issues as made by the pleadings and proceeded upon a theory not advanced or relied upon by the plaintiffs in the trial court.
This is an action in equity upon the bonds and notes owned by plaintiffs, and for the foreclosure of the liens securing the same. General relief is prayed for. The pleadings and the evidence fully disclose the facts relating to the execution of the bonds and notes, and the manner in which they were secured. There is no dispute in the evidence in this respect. It is true that the plaintiffs contended that the "notes" were secured by the "trust indenture," and that this court found to the contrary. But it appeared from the uncontradicted evidence that the "notes" were secured by bonds of an equal sum, and this court, with all the facts before it, directed a judgment for 13 the foreclosure of the plaintiffs' lien upon the bonds. The judgment was within the issues as made by the facts pleaded, and the relief prayed for and was perfectly consistent with the purpose of the action. Under such circumstances, it was the plain duty of the court to dispose of the question. "A court of equity will not take two bites at a cherry." Mathieson Alkali Work v.Virginia Banner Coal Cor. (Va.) 124 S.E. 470. (The writer of this decision would be happy if the rule extended to counsel.)
A further complaint is made that the question of exercising the option to convert the notes into bonds was not presented by the pleadings, and that this court assumed, contrary to the fact, that there was no evidence that the company had exercised such option. This objection is utterly untenable. The matter was expressly pleaded, and a specific finding of fact was made thereon by the trial court. With respect to the evidence relating to exercising the option to convert the notes before their maturity, the only evidence offered was that the railroad company had passed a resolution authorizing the issuance of $1,000,000 in bonds to convert an equal amount of 14 outstanding notes, and that, when issued, the bonds were to be delivered to the trustee *Page 24 who was authorized and directed to call in the notes and make the conversion. But there was no evidence whatever that the acts authorized by the resolution were performed at any time prior to the maturity of the notes. The mere passing of the resolution, in the circumstances, was of no legal consequence, and of no value as evidence of an offer or tender of conversion.
Very bitter complaint is made that this court, in arriving at its conclusion with respect to the convertible improvement notes, without referring to the fact, reversed the former decision of this court in the case of Barker v. Utah-Idaho Cent. R.R.Co., 57 Utah, 494, 195 P. 635. The only conflict between the instant case and the Barker Case is upon a question of fact. In the Barker Case the court determined a question of pleading according to a fact alleged in the answer. In the instant case the same question of fact arose, and this court upon the evidence found the fact the opposite way. There was no principle of law decided in the Barker Case, which conflicts with the decision in this case, and hence there was no necessity or even propriety in referring to the Barker Case.
The right of the plaintiffs to recover at all on the bonds, on account of the stipulation in the "trust indenture" limiting the right to sue to the trustee or to the holders of one-fourth in amount of outstanding bonds, is again argued, and it is claimed that such right does not exist. We find no sufficient reason for departing from the conclusion heretofore reached upon that question.
The petition for rehearing is denied.
THURMAN, J., and HANSON and WOOLLEY, District Judges, concur.