Findlay v. Keim

• Decision Date: 06 July 1869
• Citation: 62 Pa. 112
• Parties: Findlay & Hay <I>versus</I> Keim.
• Court: Pennsylvania Supreme Court

62 Pa. 112

Findlay & Hay versus Keim.

Supreme Court of Pennsylvania.

May 10, 1869.

July 6, 1869.

May 10th, 1869.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. Absent, READ, J.

Error to the Court of Common Pleas of Somerset county: No. 3, to May Term 1869.

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Baer & Baer, for plaintiffs in error.—A party may sue for specific performance and for damages for breach of another part of the contract at the same time: Fenning v. Humphrey, 4 Beav. 1; Merchants' Ins. Co. v. Algeo, 7 Casey 446; 2 Sugden on Vendors 173. Election is to be exercised only where the actions are inconsistent, not where they are concurrent: Story's Eq. J., §§ 716, 717; 4 Bouv. Inst. 193, 444; Patterson v. Swan, 9 S. & R. 16. Ejectment for specific performance is governed by the same rules as a bill in equity; Henderson v. Hays, 2 Watts 148; Pennock v. Freeman, 1 Id. 401; Brawdy v. Brawdy, 7 Barr 157. The most that could be required of the plaintiffs was that they should elect as to their action: Story's Eq., §§ 738, 742, 751, 775, 776, 889; Mitford's Pleading 248, 250; Gibson v. Finley, 4 Md. 75; Toland v. Tichenor, 3 Rawle 320; 1 Butler's Reminiscences 39, 40; Witman v. Ely, 4 S. & R. 264; S. East Railway v. Knott, 17 Eng. L. & Eq. 555; Brush v. Vandenburg, 1 Edward's Chan. 26; Brightly's Eq. 188; Foss v. Haignes, 31 Me. 81. A party is not to be deprived of a right remedy because he has chosen a wrong one; Kelsey v. Murphy, 2 Casey 83. Judgments and matters of estoppel alone conclude parties; 1 Chitty's Pl. 214. There was no plea of lis pendens, but only the general issue: Green v. N. Buffalo, 6 P. F. Smith 110; Morris v. Robinson, 3 B. & C. 196; Wistar v. McManes, 4 P. F. Smith 326; Black v. Tricker, 2 Id. 436; Marston v. Lawrence, 1 Johns. 397.

W. H. Koontz, for defendant in error.—A plaintiff cannot claim by inconsistent remedies: 5 Barr 500; Share v. Anderson, 7 S. & R. 63; 1 Tidd's Pr. 10; Clark v. Seirer, 7 Watts 109; Erwin v. Myers, 10 Wright 106; Smith v. Hodson, 4 T. R. 211; 2 Sm. L. C. 210; Lawrence v. The Ocean Ins. Co., 11 Johns. 241; Coke Litt. 146, a; Burke's Estate, 1 Pars. Rep. 470; 1 Chitty's Pl. 212; Patterson v. Swan, 9 S. & R. 20; Harker v. Whitaker, 4 Watts 476; Ong v. Campbell, 6 Id. 395; Beltzhoover v. Commonwealth, 1 Id. 126; Strickler v. Guildin, 6 Casey 114; Weaver's Road, 9 Wright 405. The action of covenant, after award, could not be discontinued without leave of the court: Act of June 16th 1836, § 25, Pamph. L. 721, Purd. 55, pl. 32; McKennan v. Henderson, 5 W. & S. 370; Girard Bank v. The Schuylkill Bank, 8 Id. 242. The election binds privies as well as parties; Merrick's Estate, 5 W. & S. 9; Diamond v. Lawrence County, 1 Wright 353; Hill v. Oliphant, 5 Id. 364. "Not Guilty" is the plea in ejectment fixed by statute: Act of April 13th 1807, § 4, 4 Sm. Laws 477, Purd. 366, pl. 15. Under it the death of plaintiff at the commencement of the suit may be shown: Patterson v. Brindle, 9 Watts 98.

The opinion of the court was delivered, July 6th 1869, by AGNEW, J.

There is but one question in this case. Jacob Keim sold his farm to the plaintiffs and then refused to comply with his contract. The plaintiffs tendered the money due and a mortgage for the remainder, and brought an action of covenant on the articles. The action was arbitrated, and for some reason not apparent, an award was given against the plaintiffs, who appealed. They then brought this ejectment to enforce specific performance of the contract. After the institution of the ejectment the plaintiffs discontinued the action of covenant without leave of the court. On the trial of the ejectment, without a previous motion to stay proceedings or compel an election, the court held that the actions of covenant and ejectment were inconsistent remedies, that by bringing covenant the plaintiffs had made their election and were barred from a recovery in the ejectment. This was an error. The action of covenant is founded on the agreement and is in affirmance of it. In the action of covenant, under our Pennsylvania practice, originating in the want of a court of chancery, the plaintiffs had a right to proceed to enforce specific performance, by asking for a verdict for the value of the land or such other sum as would compel execution of the covenant of the vendor, to be released on the tender and filing of a sufficient deed, according to the terms of the contract. Or if he chose he might ask damages only for the non-performance. This is the settled practice in this state, and this mode of equitable proceeding extends not only to covenant, but to debt, assumpsit and ejectment: Decamp v. Feay, 5 S. & R. 323; Irvine v. Bull, 7 Watts 323; Coolbaugh v. Peirce, 8 S. & R. 418; Huber v. Burke, 11 S. & R. 244, 245; Moyer v. Germantown R. R. Co., 3 W. & S. 92; Smethurst v. Woolston, 5 W. & S. 106; Haverstick v. Erie Gas Co., 5 Casey 254. The error of the learned judge was in supposing that ejectment is the only common-law action which can be used to enforce specific performance. The declaration in the action of covenant sets forth the agreement, alleges breaches of it, the chief of which is the failure to convey according to the covenant in the article, and lays the damage at $15,000, a sum amply sufficient, and indicative of the intent, to compel specific performance. It is clear the action of covenant was not in disaffirmance of the contract, and it is on that ground only it could be held to be absolutely inconsistent with specific performance. Potts' Appeal, 5 Barr 502, relied on in the court below, is different from this case. There the vendee was dead, leaving personal estate wholly insufficient to pay his debts and even a small portion of the purchase-money. The vendor having brought his ejectment on his legal title, then went into the Orphans' Court and demanded a dividend of the personalty. The effect would have been that his claim would have stripped the other creditors of their proper share, his purchase-money being $6455 and the personal fund only $640, they having no other security for their debts, while he, after receiving his dividend, would have resorted to the land on his title and forfeited the contract, the personal estate being exhausted already. He was therefore claiming in inconsistent rights; the personalty on his contract, and the land by rescission.

The original practice in chancery is evidence that the action on the contract is not antagonistical to the bill for specific performance; the party being first sent into a court of law to establish his right to recover on his contract....