Brown v. Ball

• Decision Date: 07 July 1919
• Docket Number: 1915
• Citation: 174 N.W. 629,43 N.D. 314
• Court: North Dakota Supreme Court

174 N.W. 629

43 N.D. 314

MRS. J. E. F. BROWN, Respondent, v. DR. F. E. BALL, Appellant

No. 1915

Supreme Court of North Dakota

July 7, 1919

Rehearing denied September 19, 1919.

Appeal from District Court of Cass County, A. T. Cole, J.

Affirmed.

Watson Young, & Conmy, for appellant.

This plaintiff having elected to proceed in tort waived her right to sue on the contract exhibit "B," and is estopped from now suing on that contract. The law on the subject is well settled. See 9 R. C. L. pp. 956-958.

"It is well settled indeed, that a party may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again." Thompson v. Howard, 31 Mich. 309; McNutt v Hilkins, 80 Hun, 235, 29 N.Y.S. 1049; Welsh v Carder, 95 Mo.App. 41, 68 S.W. 580; Roney v. H. S. Halvorsen Co. 29 N.D. 20; Sonnesyn v. Akin, 14 N.D. 256, 104 N.W. 1029; Field v. Elevator Co. 6 N.D. 424, 71 N.W. 135.

By deliberately electing to keep the contract exhibit "A," she disables herself from proceeding under exhibit "B," and waives her right to proceed upon it. Roney v. Halvorsen, 29 N.D. 20, and cases cited; Sonnesyn v. Akin, 14 N.D. 256; 4 L.R.A. 145; 5 L.R.A. 693; 8 L.R.A. 217; 13 L.R.A. 91; Swan v. N. R. Co. (N.D.) 168 N.W. 657; Brown v. Ball, 150 N.W. 893.

Where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point, or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action. Cromwell v. Sac Co. 94 U.S. 351, 25 L.Ed. 195; Packet Co. v. Sickles, 24 How. 333, 16 L.Ed. 650; Bissell v. Spring Valley Twp. 124 U.S. 225, 31 L.Ed. 411, 8 S.Ct. 495; Hanna v. Reid, 102 Ill. 596; Wright v. Griffey, 147 Ill. 496, 35 N.E. 732; Leopold v. Chicago, 150 Ill. 568, 37 N.E. 982; Railway Co. v. Carson, 169 Ill. 247, 48 N.E. 402; Markely v. People, 171 Ill. 260, 49 N.E. 502; Young v. People, 171 Ill. 299, 49 N.E. 503; Chicago Theological Seminary v. People, 59 N.E. 979; Stearns v. Lawrence, 83 F. 742.

"When a court with jurisdiction of the parties and subject-matter of the litigation makes an adjudication as to a question of law, etc., its adjudication is conclusive on the same questions in any subsequent litigation between the same parties." Appeal and Error, 2 Decen. Dig. No. 1097; Broden v. Graves (N.D.) 127 N.W. 104.

"Questions fairly raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, as such decision on the first appeal, whether right or wrong, became and is the law of the case." Schmidt v. Beiseker (N.D.) 120 N.W. 1096; Persons v. Persons (N.D.) 97 N.W. 551; Ottew v. Friese (N.D.) 126 N.W. 503.

"Where more than one remedy to deal with a single subject of action exists, and they are inconsistent with each other, after the choice of one with knowledge, or reasonable means of knowledge, of the facts, the other no longer exists." Rowell v. Smith, 102 N.W. 1; Fowler v. Bank, 113 N.Y. 450, 21 N.E. 172, 10 Am. St. Rep. 487, 4 L.R.A. 145; 9 R. C. L. 956-962; North Dakota cases heretofore cited.

"In cases in which the remedies are not inconsistent, but are alternative and concurrent, there is no election until one of them has been prosecuted to judgment, unless the plaintiff has gained an advantage or the defendant has suffered a disadvantage." 9 R. C. L. 961; 34 L.R.A.(N.S.) 313; Neil v. Burton, 12 N.W. 906.

This defendant is estopped by her laches and conduct from recovery here. State v. Nohls, 16 N.D. 168, 112 N.W. 141; Kenny v. McKenzie (S.D.) 127 N.W. 597; Penn Mut. L. Ins. Co. v. Austin, 168 U.S. 685; 10 R. C. L. p. 395, Nos. 142 and 143, and numerous cases cited; Haugen v. Skjervheim, 13 N.D. 616, 102 N.W. 311.

"A recovery cannot be had by an indemnitee who has not performed a covenant which by the terms of the contract is a condition precedent to any liability on the part of the indemnitor." 22 Cyc. 93 and cases cited.

"A limitation of the time for which a standing offer is to run is equivalent to the withdrawal of the offer at the end of the time named. The rule that in equity time is not of the essence of a contract does not apply to a mere offer to make a contract." 32 R. C. L. p. 609; Comp. Laws 1913, §§ 5859 and 5864; Hull Coal & Coke Co. v. United States Empire Co. 113 F. 256; Wells v. Smith (N.Y.) 31 Am. Dec. 275; Garrison v. Cook, 72 S.W. 54; 25 Cyc. 1317--abandonment of action; Johnson v. Duncan, 2 How. Pr. 366; Dyer v. Duffy, 19 S.E. 540, 24 L.R.A. 339; 5 Decen. Dig. No. 278, Contract; Vredenburg v. Sugar Co. 28 So. 122; Thurber v. Smith, 54 A. 790, waiver, of tender; Swan v. G. N. R. Co. (N.D.) 168 N.W. 657.

"The burden of proof that a proposal has been accepted, and that notice thereof has been communicated to the proposer, rests upon the party claiming to have accepted the same." 6 R. C. L. p. 607, Contracts; Weaver v. Burr, 8 S.E. 743.

There can be no question but plaintiff cannot recover in this case. Bank v. Story, 93 N.E. 940; Am. Cotton Co. v. Hervig, 37 So. 117; Decen. Dig. No. 108, Sales; Owens Co. v. Doughty, 16 N.D. 10; Poirier Co. v. Kitts, 18 N.D. 556; Fahey v. Machine Co. 3 N.D. 220; Noble v. Growing Co. 36 L.R.A.(N.S.) 472.

Lawrence & Murphy, for respondent.

Assignments of error and specifications not argued nor discussed in the brief are deemed abandoned by appellant. Supreme court rules of North Dakota 1914, rule No. 34; 2 Cyc. 1014; 4 Standard Cyc. Proc. 585; 2 Spelling, New Trial & Appeal, § 679; Hayne, New Trial & Appeal, 279; Nokken v. Mfg. Co. 11 N.D. 399, 92 N.W. 487; Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995; Foster I. Co. v. Smith, 17 N.D. 178, 115 N.W. 663; Schmidt v. Beiseker, 19 N.D. 35, 120 N.W. 1096; State v. Wright, 20 N.D. 216, 126 N.W. 1023.

In Schmidt v. Beiseker, 19 N.D. 35, 120 N.W. 1096, this court said: "The point covered by such specifications is not argued or referred to in appellant's brief, and hence is deemed abandoned."

"The doctrine of election of remedies applies only where there are two or more remedies, all of which exist at the time of election and which are alternative and inconsistent with each other, and not cumulative, so that after the proper choice of one, the other or others are no longer available." 9 R. C. L. p. 958.

"A class of cases is to be distinguished from those which are subject to the doctrine of election of remedies."

And an action on a contract induced by fraud is not inconsistent with an action for damages for the deceit. Union Cent. Ins. v. Schilder, 130 Ind. 214; Gall v. Gall, 126 Wis. 390, 5 L.R.A.(N.S.) 603, 105 N.W. 953. Notes in 8 L.R.A. 216 and 10 Am. St. Rep. 487.

"The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy." Water Co. v. Hutchinson, 160 F. 41, 19 L.R.A.(N.S.) 219; Harrill v. Davis, 168 F. 187, 22 L.R.A.(N.S.) 1153; Agar v. Winslow, 123 Cal. 587, 56 P. 422; Am. Process Co. v. Brick Co. 56 Fla. 116, 47 So. 942; Bank v. Hilson, 64 Fla. 206, 60 So. 189; McCoy v. McCoy, 32 Ind.App. 38, 69 N.E. 193; Zimmerman v. Robinson, 128 Iowa 72, 102 N.W. 814; Wells v. W. U. 144 Iowa 605, 123 N.W. 371; note in 8 L.R.A.(N.S.) 144; Rowell v. Smith, 123 Wis. 510, 102 N.W. 1, and many other cases cited therein.

"A judgment against the plaintiff in an action for deceit is not a bar to another action on a contract in regard to the same subject-matter not involving the charge of deceit." Salem R. Co. v. Adams, 23 Pick. 256; Steel v. Chamberlain, 60 N.Y. 272; Cromwell v. Sack Co. 94 U.S. 351, 24 L.Ed. 195; 6 Wait, Actions & Defenses, 781; Opinion and notes found in 22 L.R.A.(N.S.) 1160.

BIRDZELL, J. CHRISTIANSON, Ch. J., and ROBINSON, J., concur. BRONSON, J., GRACE, J., dissenting.

OPINION

BIRDZELL, J.

This is an appeal from a judgment in favor of the plaintiff for $ 954.75. The judgment was rendered in an action brought for breach of a contract to repay money expended by the plaintiff in the performance of a land-purchase contract. The facts are as follows: The defendant in 1910 was engaged in the real estate business in the city of Fargo, in the capacity of sales agent for the Columbia Land Company. He worked on a salary of $ 350 per month, and the lands he was selling were high-priced fruit lands in Oregon. In the month of January, 1910, the plaintiff entered into a contract with the Columbia Land Company for the purchase of 10 acres for $ 2,250, the contract being dated January 14, 1914. The plaintiff claims that as an inducement to enter into the contract, the defendant executed the agreement upon which this suit is founded. The agreement is as follows:

"Whereas Mrs. J. E. F. Brown of Fargo, Cass county, North Dakota, did on or about the 14th day of January, A. D. 1910, enter into a contract with the Inland Irrigation Company, a corporation, in the state of Oregon, to purchase certain real estate described as follows, to wit: The northwest quarter (N.W.1/4) of the southeast quarter (S.E.1/4) of the northwest quarter (N.W.1/4) in section nine (9), in township four (4), north of range twenty-nine (29), in the county of Umatilla and state of Oregon, containing ten (10) acres, for and in consideration of the sum of two thousand...