Knowles v. Dark & Boswell

• Decision Date: 14 February 1924
• Docket Number: 3 Div. 655.
• Citation: 99 So. 312,211 Ala. 59
• Court: Alabama Supreme Court
• Parties: KNOWLES v. DARK & BOSWELL.

99 So. 312

211 Ala. 59

KNOWLES v. DARK & BOSWELL.

3 Div. 655.

Supreme Court of Alabama

February 14, 1924

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for breach of contract by H. A. Knowles against Dark &amp Boswell. Following adverse rulings on pleading, plaintiff takes a nonsuit and appeals. Affirmed.

J. D Bailey, of Florala, and Lee & Graves, of Montgomery, for appellant.

Rushton Crenshaw & Rushton, of Montgomery, for appellees.

GARDNER J.

Appellant brought this suit against appellees to recover damages for breach of an agreement between the parties, entered into on August 9, 1920, under the terms of which the defendants are alleged to have agreed for a consideration to effect a cure of the disease from which the plaintiff was suffering. Defendants interposed the plea of general issue, and in addition thereto a special plea in substance as follows: That the plaintiff had theretofore filed suit against these defendants, claiming damages for alleged malpractice-a copy of the complaint is made an exhibit to the plea, and discloses a reference to this contract of employment; that subsequent to the bringing of this suit, to wit, September 24, 1921, these defendants paid this plaintiff the sum of $2,000, "in full payment, settlement, satisfaction, and compromise of any and all claims which he had against them or either of them on account of injury alleged by him to have been received during the months of August and September, 1920, by reason of any malpractice on the part of these defendants or either of them." The release is also attached as an exhibit to the plea. It is then averred that the damages claimed in the present complaint, and for which these defendants paid the plaintiff the sum of $2,000, were received by the plaintiff under the contract of employment between him and these defendants, entered into August 9, 1920, for the breach of which contract this suit is brought. The demurrer to this plea was overruled, and, on account of this adverse ruling of the court, the plaintiff took a nonsuit and prosecutes this appeal. The ruling of the court as to the sufficiency of this plea is therefore the only question here presented for consideration.

The plea discloses that for the alleged injuries received the plaintiff had a right to proceed against these defendants either in an action in tort or an action ex contractu for the breach of an agreement. Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863, and that he elected to proceed in the tort action, and prosecuted the same to satisfaction-receiving the sum of $2,000 in full payment therefor.

Many illustrations of the right of one receiving injuries to waive the tort and sue on the contract may be found cited in 1 Corpus Juris, 1031 et seq. The question of election of remedies and the effect thereof is discussed in numerous cases cited in the note to 1 Corpus Juris, 1039-among them Roberts v. Moss, 127 Ky. 657, 106 S.W. 297, 17 L. R. A. (N. S.) 280.

In this state the rule has been established that for such an election to be conclusive against the party it must appear that the party against whom it is pleaded has received some benefit upon his election. Todd v. Interstate Mortg. &amp Bond Co., 196 Ala. 169, 71 So. 661; Register v. Carmichael, 169 ala. 588, 53 So. 799, 34 L. R. A. (N. S.) 309; 20 Corpus Juris, 32. It is also well established that, where the same act constitutes both a breach of the contract and a tort, the injured party may waive the contract and sue in tort, and the same rule applies as to waiver of the tort and a suit...