Belding v. Whittington

• Decision Date: 10 July 1922
• Docket Number: 121
• Citation: 243 S.W. 808,154 Ark. 561
• Parties: BELDING v. WHITTINGTON
• Court: Arkansas Supreme Court

243 S.W. 808

154 Ark. 561

BELDING v. WHITTINGTON

No. 121

Supreme Court of Arkansas

July 10, 1922

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor affirmed.

Decree affirmed.

A B. Belding and C. T. Cotham, for appellants.

Plaintiffs were entitled to specific performance of their contract. 36 Cyc. 761 and cases cited in notes; 81 S.W. 419; 33 Ark. 550; 25 R. C. L. 327, and cases cited.

L E. Sawyer, and Martin, Wootton & Martin, for appellees.

1. Appellants are precluded from recovering in this action because they elected to treat the contract as breached and sought remedy at law for damages, inconsistent with the equitable relief prayed for in this action. They are bound by their election. 83 Ark. 304; Elliott on Contracts, vol. 3 § 2097.

2. The limitation in the power of attorney from Whittington and wife to Dr. Wootton, which expressly denied the right of the latter to sell real estate in Garland County belonging to the former, was known to the appellants, and makes inapplicable the principle of law that all agent, in the conduct of business for a principal, binds the principal as to all acts within the apparent scope of his authority. Moreover, in specific performance cases, an agent is held to strict compliance with his authority, or the principal must have subsequently ratified his contract. 104 Ark. 464.

Courts will not decree specific performance where it is impossible. The title to the land, at the filing of this suit, was, and is, in an innocent purchaser.

A. B. Belding and C. T. Cotham, in reply.

The mere bringing of a suit for damages, which is not prosecuted to a final decision but dismissed, does not amount to an election of remedy that will bar a subsequent action for specific performance of the contract. 111 Mass. 270; 227 Mo. 193; 21 R. I. 223; 72 N.J.Eq. 780; 141 Ia. 225; 144 Id. 187; 36 L. R. A. 195; 40 Minn. 424-8; 87 F. 390.

The mere fact that a party mistakes his remedy and pursued the wrong one at first may not prevent him from afterwards pursuing another remedy. This is the concluding statement of section 2097 of 3 Elliott on Contracts, relied on by appellants, and is our case exactly.

OPINION

WOOD, J.

This action was instituted by the appellants against the appellees in the Garland County Chancery Court. The appellants in their complaint set out the following contract: "Received of A. B. Belding and A. C. Jennings the sum of $ 200 (two hundred dollars) as a part of the agreed purchase price of the Plateau Hotel property in the city of Hot Springs, being approximately 42x90 feet, the agreed purchase price being $ 24,500 (twenty-four thousand five hundred) nineteen thousand five hundred in cash, balance at rate of six per cent. per annum. I hereby agree to have same released from deed of trust now held by Southern Trust Co., of Little Rock, if possible. Deferred payments of five thousand to be carried by me for one year. As part payment I agree to accept Liberty bonds as part cash. (Signed)

"W T. WOOTTON, Attorney

in fact.

"H. A. WHITTINGTON,

"E. W. WOOTON."

The appellants, among other things, alleged the execution of the contract, and that the appellants had always been ready and willing to comply with all terms of the contract on their part; that the appellees, H. A. Whittington and the Woottons, had refused to perform the contract on their part, but on the contrary, in violation of the terms of the contract, had sold the land described in the contract to one Peter Gartenberg for the consideration of $ 24,500, and had executed to him a warranty deed for the property; that Gartenberg purchased the property with full knowledge of the rights of the appellants under their contract as above set forth. They further alleged that Mrs. Carolyn W. Whittington, the wife of H. A. Whittington, who had a dower interest in the property, had ratified the sale to the appellants; that she also joined in the warranty deed, conveying her rights of dower and homestead to Gartenberg. The appellants alleged that Gartenberg and his wife on the 8th of May, 1919, executed a deed of trust to C. E. Marsh, as trustee, to secure the payment of certain promissory notes to H. & G. Strauss in the sum of $ 14,000; that at the time of the execution of this deed of trust Marsh, the trustee, and H. & G. Strauss had knowledge of the sale of the property to the appellants and of their rights therein; that Gartenberg, by reason of the above conveyance to him, was constituted a constructive trustee for the appellants; that the conveyant to H. & G. Strauss constituted a cloud on the title of appellants.

All of the above parties named were made defendants in the action, and the prayer of the complaint was that, upon the payment of the balance of the purchase money, the appellants be declared owners of the land, and that title thereto be divested out of the appellees and vested in them; that the appellees be directed to have proper conveyances executed to vest the fee title in the appellants. There was also a prayer for rents and profits, and an alternative prayer that, if specific performance were impossible, the appellants have judgment for their damages in addition to the rents and profits in the sum of $ 1,700, and for all other and general relief.

There was a general demurrer to the complaint, which was overruled. A "plea in abatement" was filed in which it was alleged that on the 3d day of May, 1919, appellants filed a complaint in the Garland Circuit Court against the Woottons and H. A. Whittington, alleging that the latter had breached their contract for the sale of the property to the appellants whereby they had damaged appellants in the sum of $ 1,320, for which they prayed judgment, and also for a return of the $ 200 purchase money paid by the appellants. It was set up in the "plea in abatement" that, by reason of such action in the Garland Circuit Court, the appellants had waived any and all rights they had to the specific performance of the contract and for damages growing out of failure to specifically perform same.

The appellants replied to the "plea in abatement" and admitted that they filed a complaint in the Garland Circuit Court as alleged in the plea, but they averred that on the 13th day of September, 1919, the action for damages in the Garland Circuit Court was dismissed without prejudice, and they attached to their reply a duly certified copy of the order dismissing the action without prejudice. They therefore alleged that they had not waived, and were not barred of, their rights to prosecute the present action. The court overruled the "plea in abatement," and the appellees filed separate answers, especially reserving therein their rights as set up in the "plea in abatement." The execution of the contract set out above was admitted, and it was also admitted that the property was sold, as alleged, to Peter Gartenberg. All other material allegations of the complaint were specifically denied, and it was denied that the appellants were entitled to a specific performance of the contract.

The cause was heard upon the pleadings and the depositions of the witnesses. The court rendered a decree in favor of appellants against H. A. Whittington and the Woottons in the sum of $ 200 with interest from the 10th of April, 1919, and dismissed their complaint in all other respects for want of equity. From that decree is this appeal.

The first question for our consideration is whether or not the appellants are barred from maintaining the present action for specific performance because they had instituted an action in the circuit court of Garland County for damages for an alleged breach of the contract on the...