McMahan v. McMahon

• Decision Date: 29 December 1922
• Docket Number: 11081.
• Citation: 115 S.E. 293,122 S.C. 336
• Parties: MCMAHAN v. MCMAHON.
• Court: South Carolina Supreme Court

115 S.E. 293

122 S.C. 336

MCMAHAN v. MCMAHON.

No. 11081.

Supreme Court of South Carolina

December 29, 1922

Appeal from Common Pleas County Court of Greenville County; Martin F. Ansel, County Judge.

Action by James K. McMahan against Nora H. McMahon. From a judgment for plaintiff, defendant appeals. Affirmed.

William G. Sirrine and Stephen Nettles, both of Greenville, for appellant.

J. J McSwain, of Greenville, for respondent.

COTHRAN J.

Action for damages on account of alleged breach of a contract by which the defendant agreed to sell to the plaintiff three certain lots near the city of Greenville at the price of $2,000. In May, 1920, the defendant, who resided in California, was the owner of the three lots; early in June she received a letter from the plaintiff, dated May 31st relating to a purchase of the lots. On June 12th, she replied to the letter of May 31st, stating that she would take $2,000 cash for them, and suggesting, in the event of the plaintiff's acceptance of the offer, a plan for the consummation of the trade, namely, that the plaintiff should have the deed prepared according to the South Carolina form and mailed to her; that she would execute it in due form and mail it to a friend of hers, L. B. Case, to be delivered to the plaintiff upon his delivering to Case a certified check payable to her, for $2,000. The evidence tends to show that the plaintiff accepted the terms of the proposal in such a manner as to bind him to its performance in the event of an action by the defendant against him. He testified, "I accepted the offer;" that when he received the letter of June 12th he had an unsigned deed covering the lots drawn and mailed to Mrs. McMahon, arranged to get the money, and telegraphed her that he had complied with her request. After the defendant received the form of deed from the plaintiff, which had been transmitted as suggested in her letter of June 12th, the defendant wrote the plaintiff on June 29th, recalling her offer of June 12th, refusing to accept $2,000 for the lots, and declining to execute the deed. The plaintiff then on July 7th brought an action against the defendant for the specific performance of the contract and for $500 damages. The time for answering the complaint was extended from time to time, and it appears that no answer was ever filed. On November 30th the defendant made a tender of a deed conveying the lots to the plaintiff for the original price offered, $2,000. The plaintiff refused to accept it and comply, took an order discontinuing his action for specific performance, without objection by the defendant, and instituted the present action at law for damages for breach of the contract.

The following questions arise for determination:

No. 1. Does the evidence tend to establish an enforceable contract between the parties?

No. 2. Is the plaintiff estopped from maintaining this action by reason of his refusal to accept the deed tendered to him on November 30th, while the action for specific performance was pending?

No. 3. Is the plaintiff barred from maintaining this action by reason of his election to institute the prior action for specific performance of the contract?

No. 4. Is there any evidence tending to establish the plaintiff's claim for damages?

No. 5. Was there error on the part of the presiding judge in charging the jury, "There is no contest about what the contract was"?

The first question: From the foregoing statement there was evidence tending to show that a proposal for a sale at a certain price was made by the defendant and accepted by the plaintiff. The defendant contends that the evidence tended to establish only a unilateral contract, subject to revocation by the defendant at any time prior to its consummation. The distinction between unilateral contracts and bilateral contracts is recognized. A unilateral contract is one in which there is a promise on one side only; the consideration on the other side being executed. A familiar illustration is an option, upon valuable consideration, to purchase land. The promisor only is bound; the promisee being at liberty to comply or not at his option; his consideration being executed.

The proposition of Mrs. McMahon was but an offer to sell, which she had the right to revoke at any time prior to acceptance by McMahan; neither being bound up to that time, and both being bound thereafter. The fact that her offer may have been made upon conditions to be accepted by McMahan did not convert her proposal into any kind of contract, unilateral or bilateral. As a matter of construction the suggestion in her letter of June 12th, as to how the trade was to be consummated, was not imposed as a condition, but simply as a convenient method of consummating it, which McMahan appears in good faith to have made every effort to comply with. After his acceptance, it was beyond the power of Mrs. McMahon to revoke her proposal.

The second question: The pendency of the first action for specific performance continued uninterrupted by any movement of the plaintiff from July 7 to and after November 30, when the tender of the deed was made. As long as it so continued, it carried with it the assurance on the plaintiff's part that if what was demanded by him was offered he would accept it. The complaint demanded, not only specific performance of the contract, but damages to the amount of $500 for the alleged breach. If within a reasonable time the defendant had offered a deed and to pay such damages as the plaintiff had sustained, and he had refused such offer, there would have been strong reason for holding him estopped from repudiating his own proposition; but the defendant did not comply with this condition. She waited until November 30th to tender the deed, at a time when real estate values had declined, and it was to her interest to accept the $2,000, without a suggestion of paying the plaintiff the damages he claimed, or any part of them. As she was actuated by her own interest in tendering the deed after so long a delay, she cannot be heard to insist that the plaintiff should be estopped from acting upon the same impulse.

The third question: Upon the breach of the contract by Mrs. McMahon the plaintiff had open to him two remedies; an action to enforce the specific performance of the contract (the result being he would pay the purchase price of the lot and Mrs. McMahon would execute and deliver a deed to him), or an action against her for damages consequent upon the breach; the one in equity, the other at law. These remedies are not inconsistent with each other, for they each depend upon the establishment of the identical contract.

The doctrine of election of remedies is regarded as being an application of the law of estoppel, upon the theory that a party cannot in the assertion of his right occupy inconsistent positions in relation to the facts which form the basis of his respective remedies; it is based on the proposition that, when a party has two remedies proceeding upon opposite and irreconcilable claims of right, the one adopted excludes the other.

The so-called "inconsistency of remedies" is not an inconsistency between the remedies themselves, for this may often happen when the same facts are relied upon as the basis of the several alternative remedies; but it means that a certain state of facts relied upon as the basis of a certain remedy is inconsistent with and repugnant to another certain state of facts relied upon as the basis of another remedy.

If a party should invoke a remedy appropriate to a certain state of facts, and there should exist another remedy appropriate to a different state of facts, inconsistent with and repugnant to the first state of facts, his invocation of the first remedy is an election which by the bare commencement of the action will bar his right to invoke the other remedy.

When a certain state of facts under the law entitles a party to alternative remedies, both founded upon the identical state of facts, these remedies are not considered inconsistent remedies,...