Kallberg v. Newberry

• Decision Date: 21 December 1918
• Docket Number: 1915
• Citation: Kallberg v. Newberry, 43 N.D. 521, 170 N.W. 113 (N.D. 1918)
• Court: North Dakota Supreme Court

170 N.W. 113

43 N.D. 521

VICTOR E. KALLBERG, Appellant, v. G. S. NEWBERRY, Respondent

No. 1915

Supreme Court of North Dakota

December 21, 1918

Petition for rehearing filed April 12, 1918.

Appeal from District Court of Foster County, Honorable J. A. Coffey Judge.

Affirmed.

T. F McCue, for appellant.

"A mere attempt to claim a right or pursue a remedy to which a party is not entitled, and that without obtaining any legal satisfaction therefor, will not deprive him of a right or the benefit of a remedy to which he originally had a right to claim or resort. The doctrine of election between inconsistent rights or remedies has no application to such a case." Bennet v. Lapp, 41 Minn. 494, 43 N.W 334.

Where one brings a suit to recover what he has paid on the contract, based upon a rescission of the contract by him, and fails to recover because of no legal right to rescind, another suit for damages is maintainable. Where there exists but one remedy for a wrong, an election of remedies is an impossibility. Ibid., Detroit H. & L. Co. v. Stevens, 58 P. 195.

The remedy which one pursues in the belief that it exists in his favor must actually exist before he is estopped. 7 Am. & Eng. Enc. Pl. & Pr. p. 366; Elliott v. Collins (Idaho) 55 P. 302; Marshall v. Gilman (Minn.) 53 N.W. 811.

The former action was a mere empty suit, under which plaintiff derived no benefit; he was mistaken in his remedy. Such an empty proceeding will not constitute an election of remedies so as to bar a party from recovery in a proper action. Omaha v. Redick (Neb.) 84 N.W. 46; McLaughlin v. Austin (Mich.) 62 N.W. 719; Bistline v. United States, 144 C. C. A. 6, 229 F. 546; Pruett v. Edwards, 88 S.E. 36; McGibbon v. Schmidt (Cal.) 155 P. 460; Commercial Nat. Bank v. Faser, 155 N.W. 601; Corbett v. Boston Ry. C. 107 N.E. 60; Union Central Life v. Drake, 214 F. 536; Snow v. Allen (Mass.) 30 N.E. 691; Sullivan v. Rose (Mich.) 76 N.W. 309; Chaddoch v. Tabor (Mich.) 72 N.W. 1093; Shanahan v. Corburn, 87 N.W. 1038; Smith v. Bricker, 86 Iowa 285, 53 N.W. 250.

In order for the doctrine of the election of remedies to bar an action, the party must have received some benefit under the election. Register v. Carmichael, 169 Ala. 588, 34 L.R.A.(N.S.) 309 and cases cited; Todd v. International Mtg. & Bond Co. 71 So. 661; Fitzgerald v. Fer. Trust Co. 187 S.W. 600; Whitley v. Spokane Ry. Co. 132 P. 121; Molher v. Chamber of Commerce, 153 N.W. 617; Kaufman v. Cooper, 39 Mont. 146, 101 P. 969; Wilson v. Edwards, 113 N.Y.S. 687; Calhoun County v. Met. Constr. Co. 152 Ala. 607; Belt v. Washington Power Co. (Wash.) 64 P. 523.

"A party who imagines he has two or more remedies, or who misconceives his rights, is not to be barred from all remedy because he first tries a wrong one. Justice should not be wholly denied because a wrong remedy was first pursued." Bunch v. Graves, 111 Ind. 357, 12 N.W. 514; Agar v. Winslow (Cal.) 56 P. 422.

In order that a judgment will constitute an estoppel, the issue must be necessarily tried and determined in the former action. Carter v. Carter, 14 N.D. 66, 103 N.W. 425.

And the subject-matter and demand must be the same. Selbie v. Graham, 18 S.D. 365, 100 N.W. 755; Mosteler v. Holborn, 21 S.D. 547, 114 N.W. 693; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195; Gehering v. School Dist. (Neb.) 107 N.W. 250; Woodman v. Blue Grass Land Co. (Minn.) 107 N.W. 1052; Coyle v. Due, 28 N.D. 406; Stitt v. Rat Portage Co. 101 Minn. 93, 11 N.W. 948.

Where it is pleaded and proved that a written contract is signed only upon the faith placed by said party in certain oral promises made by the other party at the same time and prior to the signing of the written contract, and in the full belief that such oral promises constituted a part of their entire contract, and that the party making them would carry them out, evidence of such oral promises is highly competent and should be received. Erickson v. Wiper, 33 N.D. 193; De Rue v. McIntosh, 26 S.D. 42, 127 N.W. 532; Chapin v. Dobson, 78 N.Y. 74, 34 Am. Rep. 512; Thomas v. Loose, 114 Pa. 35, 6 A. 326; Dicken v. Morgan, 54 Iowa 684, 7 N.W. 145; Cullman v. Lindsay, 114 Pa. 166, 6 A. 332; Barnett v. Pratt, 37 Neb. 352, 55 N.W. 1050; Ayer v. Bell Mfg. Co. 147 Mass. 46, 16 N.E. 754; Davison v. Cochran, 71 Iowa 369, 32 N.W. 445; 9 Enc. Ev. 350; Ferguson v. Raferty, 128 Pa. 337, 6 L.R.A. 33, 18 A. 484; Hines v. Wilcox, 96 Tenn. 148, 34 L.R.A. 824, 54 Am. St. Rep. 826, 33 S.W. 914; Walker v. France, 112 Pa. 203, 5 A. 208; Bourne v. Sherill, 143 N.C. 381, 118 Am. St. Rep. 809, 55 S.E. 799; Brown v. Hobbs, 147 N.C. 73, 60 S.E. 716; Devlin, Deeds, 3d ed. § 826; Mapes v. Metcalf, 10 N.D. 609.

When the consideration of a written contract is the material subject of inquiry, parol evidence is always admissible. Winsor v. St. Paul M. & M. R. Co. (Wash.) 79 P. 613.

Before a party is entitled to a judgment notwithstanding the verdict, it must appear clearly, upon the whole record, that he is entitled to a judgment on the merits of the case, as a matter of law. First Nat. Bank v. Kelly, 30 N.D. 98; Cruikshank v. St. P. F. & M. Ins. Co. 75 Minn. 266, 7 N.W. 958; Marquardt v. Hubner, 77 Minn. 442, 80 N.W. 617.

Edward P. Kelly, for respondent:

"No suitor is allowed to invoke the aid of the courts upon contradictory principles of redress, upon one and the same line of facts. The whole doctrine of election of remedies is based upon the theory that there are inconsistent rights and remedies of which a party may avail himself, and the choice of one is held to be an election not to pursue the other. The principle does not apply to coexisting and consistent remedies." Standard Sewing Machine Co. v. Owings, 140 N.C. 503, 53 S.E. 345, 8 L.R.A.(N.S.) 582; Whittier v. Collins, 15 R. I. 90, Am. St. Rep. 879; Bacon v. Moody, 117 Ga. 207, 43 S.E. 482; Austin Mfg. Co. v. Dexter, 109 Iowa 277, 80 N.W. 312; Black v. Miller, 75 Mich. 323, 42 N.W. 837; Sonnesyn v. Akin, 14 N.D. 248; Dennies v. New Pub. Co. (N.D.) 129 N.W. 93; Poirer Mfg. Co. v. Kitts, 18 N.D. 556, 120 N.W. 558; Cobb v. Hatfield, 46 N.Y. 536; Schiffer v. Ditze, 83 N.Y. 308; Maron v. Bovet, 43 Am. Dec. 651; Humpner v. Osborne Co. (S.D.) 50 N.W. 88; Sullivan v. Ross Estate, (Mich.) 71 N.W. 634; Farwell v. Myers, 26 N.W. 328; Roberts v. Ely, 9 N.Y.S. R. 796; Stewart v. Huntingdon, 16 N.Y.S. 112; Brown v. Ball, 29 N.D. 223; Zimmerman v. Robinson & Co. (Iowa), 102 N.W. 814.

The judgment in a prior action bears as an estoppel only as to matters in issue or controverted upon the determination of which the findings or verdict was rendered, where the second action between the parties is upon a different claim or demand. A former judgment is a bar not only as to every matter which is offered to sustain the verdict or claim or demand, but as to any other admissible matter which might have been offered for that purpose. Selby v. Graham, 18 S.D. 365, 100 N.W. 755, 24 Am. & Eng. Enc. Law p. 779.

"The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." Comp. Laws 1913, § 5889.

"Parol testimony cannot be introduced to vary, add to, or alter a written instrument which in itself is plain and free from doubt, in the absence of fraud, surprise, or mistake." Durkin v. Cobleight (Mass.) 17 L.R.A. 270 and note; N.W. Fuel Co. v. Brunz, 1 N.D. 137.

"The testimony was evidenced by a writing; to permit some supposed agreement to be proven by parol would be to vary, contradict, and annul the written agreement by a parol contemporaneous arrangement. This the law will not tolerate." National German Am. Bank v. Lang, 2 N.D. 11; Thompson v. McKee, 5 N.D. 196, 37 N.W. 367; Plano Mfg. v. Rott, 3 N.D. 165; Hutchinson v. Clary, 3 N.D. 270; Wm. Deering & Co. v. Russell, 5 N.D. 319.

The agreement here sought to be proved by parol was in no manner a collateral matter distinct from the subject-matter of the written contract, but directly connected therewith. First Nat. Bank v. Prior, 10 N.D. 146; Jones & Son v. G. N. R. Co. 12 N.D. 336; Merchants State Bank v. Ruetell, 12 N.D. 519.

If the contrary principle were established no written contract could be made that could not be defeated by parol. Mukland v. Menasha Wooden Ware Co. 68 Wis. 34; Reeves v. Bruening, 13 N.D. 157; Dowagiac Mfg. Co. v. Mahon & Robinson, 13 N.D. 516; Alsterberg v. Bennett, 14 N.D. 596; Putnam v. Prouty, 24 N.D. 517.

BIRDZELL, J. ROBINSON, J. (dissenting).

OPINION

BIRDZELL, J.

This is an appeal from an order entered in the district court of Foster county, setting aside the verdict of a jury in favor of the plaintiff for $ 1,440, and directing the entry of a judgment non obstante for the defendant. The facts are as follows: Plaintiff Kallberg, being indebted to the First National Bank of Carrington, of which the defendant Newberry was cashier, and there being liens outstanding upon his land in considerable amount, was apparently desirous of disposing of his property and paying his debts. The bank was also apparently desirous of collecting the amount owing to it by Kallberg. In carrying out this purpose, Kallberg, in the fall of 1914, talked with the defendant concerning the proposed sale of his land, and on October 20th gave Newberry a fifteen-day option upon the land at $ 25 per acre. During the life of this option, some prospective deals were discussed and investigated by the plaintiff and defendant, but inasmuch as they involved trades which, for one reason or another, were regarded as undesirable, the sale was not consummated. During this same year, Kallberg had listed his land with at least two real estate men in Carrington at $ 25 per acre. He had also...