Gray v. Hickey
| Decision Date | 17 July 1917 |
| Docket Number | 14030. |
| Citation | 97 Wash. 278,166 P. 625 |
| Parties | GRAY v. HICKEY. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.
Action by John T. Gray against Kate L. Hickey as executrix of the estate of M. J. Hickey, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.
Guy E Kelly and Thomas MacMahon, both of Tacoma, for appellant.
Wm. H Pratt, of Tacoma, for respondent.
This action was brought to recover damages for an alleged breach of a written contract. The cause was tried to the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff for $575. The defendant has appealed.
It appears that in March, 1915, M. J. Hickey entered into a written contract with respondent, whereby respondent agreed to cut a certain number of cords of would at a given price. He was to be paid on the 5th of each month for the wood cut during the preceding month. Soon after entering into this contract, Mr. Hickey died. The respondent continued the work under the direction of the executrix of the estate of Mr. Hickey. The work was paid for up to July. Thereafter the executrix of the estate of Mr. Hickey refused to pay for wood cut during the months of July, August, and September, or thereafter, and the respondent thereupon filed a lien for the wood which had been cut under the contract. Afterwards he brought a suit to foreclose the lien, and judgment was rendered in his favor. An appeal was prosecuted to this court, and the judgment of the lower court was affirmed as to the right of the respondent to a lien for the work he had done, but was modified in respect to other lien claimants. Gray v. Hickey, 162 P. 564. Thereafter this action was brought to recover damages for an alleged breach of the contract, and resulted in a judgment as above stated. Mrs. Hickey, as executrix of the estate, has appealed.
It is argued, first, that the complaint does not state a cause of action for the reason that the complaint does not allege a rejection of the claim filed with the executrix. The sufficiency of this claim, or one of the same nature, was presented upon the appeal in the other case, and we there held that the claim filed with the executrix of the estate was sufficient, without a formal rejection. It is unnecessary to further consider this question.
It is next claimed that the action is barred because of a previous election of an inconsistent remedy, and it is argued that because the respondent brought an action to foreclose his lien for work done under the contract, he cannot now maintain this action for damages on account of the breach of the contract. There can be no doubt that, where a contract is breached, the party injured may pursue one of two remedies: First, he may sue upon his contract and recover his loss of profits; or, second, he may waive the contract and sue upon a quantum meruit; but he cannot pursue both remedies, for they bear a different measure of damages. Gabrielson v. Hague Box & Lumber Co., 55 Wash. 342, 104 P. 635, 133 Am. St. Rep. 1032. This is, no doubt, the general rule.
When the other action was brought by the respondent to foreclose his claimed lien, that action was based upon the contract for work which had been done. No claim was made in that case for damages occasioned by loss of profits for a breach of the contract. We are of the opinion that a lien may not be claimed for loss of profits. The appellant cites and relies upon the case of Gould v. McCormick, 75 Wash. 61, 134 P. 676, 47 L. R. A. (N. S.) 765, Ann. Cas. 1915A, 710. That was a case where an architect had been employed to draw plans and superintend the construction of a building. Before the building was completed, he was discharged. He filed a claim of lien for services as architect and superintendence of the building, and was allowed to maintain his claim upon the contract, but the question of the right of a lien claim for profits or damages resulting from breach of the contract was neither considered nor alluded to in that case, and we did not intend to hold that a lien may be claimed for damages for the breach of a contract. We are satisfied that under the...
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