Anderson v. Allison
| Decision Date | 01 July 1970 |
| Citation | 471 P.2d 772,256 Or. 116 |
| Parties | Arthur O. ANDERSON and E. G. Anderson, Appellants, v. Stanley T. ALLISON and Florence H. Allison, Respondents. |
| Court | Oregon Supreme Court |
Howard R. Hedrick, Portland, argued the cause for appellants. With him on the brief was Lloyd F. Ryan, Jr., Portland.
John C. Caldwell, Oregon City, argued the cause for respondents. With him on the brief were Hibbard, Jacobs, Caldwell & Canning, Oregon City.
This is an action by the sellers of a retail hardware business under a contract, which included both personal property and the sellers' equity in real property, against the purchaser for the balance due on the purchase price following defendants' refusal to make any further payments. The trial court, while finding that defendants failed and refused to make payments under the contract, also found that plaintiffs' vendors (under a previous contract which defendants has assumed, but failed to pay) had gone into possession and had locked defendants out, with the result that plaintiffs were unable to 'vest defendants with title' to or possession of the personal and real property. Based upon these findings, the trial court concluded that a judgment for the contract balance would 'amount to a specific performance' and entered judgment in favor of defendants. Plaintiffs appeal.
Defendants contend that the judgment was proper because plaintiffs made an election of remedies by previously filing an unsuccessful suit to foreclose the contract, in which they asked for both a decree of foreclosure and also for judgment for the contract balance.
Defendants also contend that a court may treat and action at law for the balance due under a land sale contract as a suit for specific performance of that contract and that in such a suit mutuality of remedy is required. Accordingly, defendants contend that since, in this case, plaintiffs could not deliver possession or title to defendant (due to the repossession by plaintiffs' vendors after the filing of the original suit to foreclose the contract) there is either a lack of remedy or a failure of consideration, with the result that plaintiffs may not demand judgment for the balance due under the contract.
In our view, neither of these contentions is valid.
Election of Remedies.
It is well established in Oregon that there is no binding election of remedies by the filing of proceedings under which relief is prayed for that is not available to the plaintiff and that in such an event plaintiff may still seek another remedy that is available to him. Payne v. Griffin, 239 Or. 91, 95, 396 P.2d 573 (1964). It is also well established that an election of one remedy bars another remedy only when the two remedies are inconsistent. Thus, in Weatherly v. Hochfeld, 133 Or. 136, 142, 286 P. 588 (1930) it was held by this court that the filing by the seller of an unsuccessful action on a note for the purchase price does not bar a subsequent suit to foreclose the mortgage taken as security for the note--almost the converse of the situation in this case. See also Renard v Allen, 237 Or. 406, 415, 391 P.2d 777 (1964).
In this case counsel for defendants contended that plaintiffs were entitled to the remedy of strict foreclosure in the original case and that the prayer asking for judgment for the contract balance was not properly a part of the complaint in that suit to foreclose the contract. But in the original case defendants contended that plaintiffs' entire complaint should be dismissed 'as without merit.' Plaintiffs then filed a supplemental complaint in that case asking for judgment for the contract balance. The court in that case then dismissed both the plaintiffs' complaint and supplemental complaint without prejudice 'except as to another suit for foreclosure under the statutory procedure for foreclosure of liens.' It should also be noted that the contract in this case specifically provided that in the event of a default the seller might seek to either foreclose the contract or demand payment of the entire contract balance, and could also 'combine any of such options and remedies.'
Under these facts we hold that plaintiffs were not barred by an election of remedies by the filing of the previous case and that they were still entitled to file proceedings to enforce payment of the contract balance.
Mutuality of Remedy.
We also hold that the defense of lack of mutuality or failure of consideration must be rejected under the facts of this case.
It may be true, as contended by defendants, that a deficiency judgment on a land sales contract can only be obtained by a suit for specific performance, at least under some circumstances. Renard v. Allen, 237 Or. 406, 412, 391 P.2d 777 (1964). It may also be true, as contended by defendants, that a court may sometimes consider an action at law for payment of the balance due under a land sales contract as a suit in equity for specific performance of that contract, subject to the equity powers of the court, such as for a sale of the property involved if the contract balance is not paid, as in the event that the purchaser may have made payments resulting in a substantial equity. Thorp v. Rutherford, 150 Or. 157, 164, 43 P.2d 907 (1935).
It is also true, however, that a purchaser under a land sales...
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