Fleming v. Ellison

• Decision Date: 15 February 1905
• Citation: 102 N.W. 398,124 Wis. 36
• Parties: FLEMING ET AL. v. ELLISON.
• Court: Wisconsin Supreme Court

124 Wis. 36

102 N.W. 398

FLEMING ET AL.

v.ELLISON.

Supreme Court of Wisconsin.

Jan. 31, 1905.

Dissenting Opinion Feb. 15, 1905.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by John B. Fleming and another against Thomas Carmichael, in which a motion was made to revive the action against A. F. Ellison, administrator of the estate of said Carmichael. From an order denying the motion to revive, plaintiffs appeal. Reversed.

This action was brought March 22, 1900, against one Thomas Carmichael, to compel specific performance of a contract dated August 5, 1899, by which defendant agreed to convey certain lands in Chippewa county to plaintiffs for $4,125. The complaint, after alleging the terms of the contract, avers that plaintiffs tendered to defendant the contract price and demanded a deed, which defendant refused to execute. Defendant answered, admitting the ownership of the lands, making of the contract, and refusal to execute a deed; alleging as a reason that Donnellan misrepresented the value of the lands. It further appears that plaintiffs moved the court for an order amending the title of the action, and to revive against the administrator, and filed a supplemental complaint alleging that on August 6, 1900, defendant conveyed the lands to one Smith, by warranty deed, for $5,625, which was duly recorded; that defendant thereby placed it beyond his power and the power of his personal representatives to fulfill his contract; that by such sale defendant had sold the lands for $1,500 more than the amount of the contract price with the plaintiffs; that on October 13, 1902, defendant died; that on January 6, 1903, A. F. Ellison was appointed administrator; that at the time of sale to Smith the lands were worth $6,525, and, because defendant had placed it out of his power and the power of his heirs and representatives to fulfill his contract, plaintiffs elected to recover the profits of the sale, amounting to $1,500, and demanded judgment for $1,500, interest and costs, together with such other and further relief as to the court might seem just and equitable. Plaintiffs noticed the case for the May term, 1901. Defendant on May 9, 1901, applied for continuance, which was denied. The application was renewed on May 18, 1901, and granted, against the objection of plaintiffs. The grounds of the application for continuance were that defendant was in poor health and unable to attend trial. At the time of continuance Carmichael was not confined to his bed, but was up and around--being, however, in poor health--and continued to fail up to the time of his death. For a few months prior to his death he was unable to attend to business. Neither party attempted to bring the case to trial at the October, 1901, and May, 1902, terms of court; the failure of the plaintiffs to notice the case being because of the former continuance on account of ill health of Carmichael, and belief that he had not in the meantime recovered. That the plaintiffs for a period of about four months expended much time and money in endeavoring to sell the lands. That conversations were had between plaintiffs' attorney and the administrator concerning motion to revive, and no desire was expressed on the part of the administrator to have the matter speedily heard. That the administrator has lost nothing by the delay since the death of Carmichael, and that the time for plaintiffs to file their claim against the estate of Carmichael had elapsed when motion to revive was heard. From the order overruling the motion to revive, this appeal is taken.

Winslow, J., dissenting.

Wickham & Farr, for appellants.

W. F. Bailey, for respondent.

KERWIN, J. (after stating the facts).

The question involved is whether the court erred in denying plaintiffs' motion to revive and continue the action against the administrator. It does not appear upon what grounds the court below denied the motion, but it is contended by respondent, first, that the supplemental complaint on motion to revive changed the action from one in equity to one at law, which could not be done, and the action revived against the administrator; and, second, that the plaintiffs were guilty of such laches as to justify the court in denying the application to revive.

1. It is not denied that at the time of the death of Carmichael the plaintiffs had a good cause of action in equity, which survived; but it is contended that because the plaintiffs, in their supplemental complaint, elected to take damages in lieu of specific performance after Carmichael had put it out of his power to perform, this amounted to a change of the cause of action from equity to law, which could not be done, and the action continued against the administrator of Carmichael. We think this proposition is untenable. It is well settled that “if a person in good faith brings an action in equity, alleging facts sufficient to constitute a good cause of action within some recognized principle of equity jurisprudence, but fails to establish some fact essential thereto, yet does establish a state of facts entitling him to some relief by way of damages or otherwise, the court will not dismiss the bill, and thereby render further litigation necessary, but will retain it, and render such judgment as will do complete justice between the parties.” Franey v. Warner et al., 96 Wis. 222, 71 N. W. 81;Gates v. Paul, 117 Wis. 170, 94 N. W. 55;Combs v. Scott, 76 Wis. 662, 45 N. W. 532. This doctrine applies to equitable actions for specific performance of contracts for the sale of real estate, where pending the action the party who agreed to convey has put it out of his power to do so by a sale of the real estate. Hall v. Delaplaine, 5 Wis. 206, 68 Am. Dec. 57;Combs v. Scott, 76 Wis. 662, 45 N. W. 532. The motion to revive was to revive the action then pending, which was equitable in its nature, but which nevertheless gave plaintiffs the right to recover damages because defendant had put it out of his power to convey. No relief being sought by the supplemental complaint, other than what the plaintiffs would have been entitled to against Carmichael after he had put it out of his power to convey, the cause of action was not changed from equity to law, but plaintiffs were entitled to damages in the equitable action. Hall v. Delaplaine, 5 Wis. 206, 68 Am. Dec. 57;Combs v. Scott, 76 Wis. 662, 45 N. W. 532;Franey v. Warner et al., 96 Wis. 222, 71 N. W. 81;Gates v. Paul, 117 Wis. 170, 94 N. W. 55. In Hall v. Delaplaine, supra, it appears that the land was conveyed to a third party without notice, and it was held that a court of equity would retain the action and award damages; and in Combs v. Scott, supra, it appears that the purchaser had notice, but the court held specific performance ought not to be enforced, on account of the gross laches of the plaintiff, and further held that, because the statute of limitations had run against the plaintiff in the action at law, the court of equity should hold the case and award plaintiff his damages. It will be seen that the facts in the case at bar bring the plaintiffs within the doctrine of the above cases, and entitle them to recover damages in the action pending at the time of Carmichael's death, growing out of the breach of his contract with plaintiffs. It therefore follows that the revival should be against the administrator, and not against the heirs. Sections 3501, 3907, Rev. St. 1898; Cotter v. Plumer, Adm'r, 72 Wis. 476, 40 N. W. 379.

2. The next question to be considered is whether the plaintiffs were guilty of such laches as to...