Mcvay v. Castenara

• Decision Date: 20 October 1928
• Docket Number: 27393
• Citation: 152 Miss. 106,119 So. 155
• Court: Mississippi Supreme Court
• Parties: MCVAY v. CASTENARA. [*]

119 So. 155

152 Miss. 106

MCVAY v. CASTENARA. ^[*]

No. 27393

Supreme Court of Mississippi

October 20, 1928

Division A

Suggestion of Error Overruled Dec. 10, 1928.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE Judge.

Action by W. A. McVay against C. H. Castenara. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Buntin & McIntosh, for appellant.

The appellant is not estopped from prosecuting an action for damages caused by the appellee's willful, obstinate, unwarranted, and unjustifiable delay in the performance of said contract unless, at the time of the filing of the suit for specific performance, the doctrine of election of remedies was applicable. The doctrine of election of remedies is not applicable unless the remedies are inconsistent and does not apply to consistent remedies asked for in this case.

It is not inequitable to specifically enforce the contract, and justice demands that it shall be done, with damages for the unjustifiable delay to do that which should have been promptly done. See Thurman v. Pointer, 67 Miss. 297; 20 C. J. 21 et seq.; 9 R. C. L. 957; Southern Ry. v. Attalla, 41 So. 664; Todd v. Interstate Mortgage & Bond Co., 71 So. 661; Watson v. Perkins, 40 So. 643; Calhoun County v. Art Metal Construction Co., 44 So. 876; 3 Words & Phrases (1st Series) 2338; Austin Mfg. Co. v. Decker, 80 N.W. 312, 109 Ia. 277.

An action at law for damages for the breach of a contract and an action in equity for specific performance are both based on the contract and the promisor's default and are not inconsistent remedies. Balleisen v. Schill, 121 A.D. 285, 105 N.Y.S. 692.

To make them inconsistent one must allege what the other denies or the allegations in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demand which makes the election of one remedial right an estoppel against the assertion of the other and not the fact that the forms of action are different. Slaughter v. La. Campagnie Francaises, etc., 119 F. 588, 48 L.Ed. 308; Kearney Milling, etc., Co. v. Union Pacific R. Co., 97 Ia. 719, 66 N.W. 1059; Fisher v. Brown, 111 Ill.App. 486; Redhead v. Wyoming Inv. Co., 126 Ia. 410, 102 N.W. 144. See, also, Water, etc., Co. v. Hutchinson, 160 F. 41; Davenport v. Allen, 120 F. 172; Rossman v. Tilleny, 80 Minn. 160, 83 N.W. 42; Arthur Fritsch Fdy., etc., Co. v. Goodwin Mfg. Co., 100 Mo.App. 414, 74 S.W. 136; Marsh v. Masterton, 101 N.Y. 401, 5 N.E. 59.

The appellant could without let or hindrance from any rule of law, pursue to conclusion action for specific performance of his contract with appellee and, if not satisfied with the result of that, commence and carry through the prosecution of his action for damages for unwarranted delay in performance. New York Land Imp. Co. v. Chapman, 118 N.Y. 288, 23 N.E. 187; Simmons v. Fagan (Neb.), 87 N.W. 21, 23; Standard Sewing Machine Co. v. Owings, 8 L. R. A. (N. S.) 582; and cases there cited.

The case of Thurman v. Pointer, supra, clearly substantiates appellant's contention that he was entitled to both specific performance and also to damages for unwarranted delay in performance, and if these two rights ever accrued to the appellant, they can only be taken away by one of three ways: 1. Statute of Limitations, which is not pleaded in this case, or applicable to it; 2. Satisfaction, which is not pleaded or applicable in this case; and, 3. By res adjudicata. Therefore, the only contention left to the appellee is that appellant's right of action for damages is res adjudicata.

It seems that the universal rule is that unless remedies are inconsistent, then they might be brought in one or more different actions without regard to result of former actions. Rose v. Hawley, 133 N.Y. 315, 31 N.E. 236; 34 C. J. 802; Woodmen v. Bunch, 115 Miss. 512, 76 So. 540; Terry v. Hageman, 102 Miss. 224; 59 So. 75; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Creegan v. Hyman, 93 Miss. 481, 46 So. 952; Perry v. Lewis, 49 Miss. 443; Dunlap v. Edwards, 29 Miss. 41; Hubbard v. Flynt, 58 Miss. 266; Alexander v. Woods, 75 So. 772.

It was only after the consummation of the suit for specific performance and Mr. Russell's subsequent refusal to consummate his contract with appellant because of his long delay and the decrease in the market value of said property, that the appellant first knew of or had any right of action for damages against appellee because of his willful, obstinate, unwarranted, and unjustifiable delay in doing that which should have been promptly done.

Gardner, Brown & Morse, for appellee.

The sole proposition involved in this case is: can a party who has filed a suit for specific performance and has prosecuted the same to a successful conclusion, thereafter file a separate and independent suit at law to recover the damage which he is alleged to have sustained because of the delay of the defendant, in the specific performance suit, to convey the property according to the contract.

The averments in the declaration show conclusively that the plaintiff has elected his remedy in that he filed a suit for specific performance of the contract, same being No. 8638 in the chancery court, Harrison county, Mississippi, and that said suit was prosecuted to a final conclusion, and that judgment was obtained in the supreme court in favor of W. A. McVay and the property sued for was conveyed to him by order of court. See Abbott v. Land & Water Co., 118 P. 425; 2 Warvelle on Vendors, sec. 958; 36 Cyc. 753; 1 Sutherland on Damages (3 Ed.), sections 106, 108, 112, 113, 120; Head v. Meloney (Pa.), 2 A. 195; Thompson v. Myrick, 24 Minn. 4; Waldo v. Lockard et al., 165 N.W. 154; Royal Live Fish Co. v. Central Fish Co., 144 N.Y.S. 21; Collins et al. v. Gleason, 91 P. 566; Willoughty v. Atkinson Furnishing Co., 52 A. 757.

Whether the remedies available to appellant are inconsistent or not is immaterial here. The important point is that all relief asked for should have been included in the one action, and having failed then to ask for damages, appellant is now estopped from filing a separate suit to recover damages, incident to the breach of contract. Zutterling et al. v. Drake (Ohio), 10 C. C. (N. S.) 167; 7 Ency. Plead. & Prac. 364.

Counsel for appellant cites Thurman v. Pointer, 67 Miss. 297. However, it will be observed that appellee's position here is not contrary to but is in all respects consonant with the rule laid down by this court in Thurman v. Pointer. And we emphasize that in that case both remedies, i. e., specific performance and damages for delay were sought in the same action. Such is not the course appellant here pursued. See, also, Kimball v. Louisville & Nashville R. R. Co., 48 So. 230.

Argued orally by R. R. Buntin, for appellant.

OPINION

SMITH, C. J.

The appellee executed a written contract to convey to the appellant certain land, but afterwards declined to do so. Appellant then filed a bill in equity for specific performance of the contract, and obtained a decree therefor. No other relief was there sought. After that case was disposed of, the appellant instituted this action at law to recover from the appellee damages which he claimed to have sustained because of the appellee's delay in conveying the land to him. A demurrer by the appellee to the declaration was sustained, and from a judgment dismissing his suit, the appellant has brought the case to this court.

The appellant's case, as it appears from his declaration, is, in substance, as follows: On November 5, 1925, a written agreement was entered into by the appellant and the appellee, by which the appellee agreed to sell, and the appellant to purchase, certain land; the deed therefor to be delivered by the appellee to the appellant on January 4th following. The appellant wanted the land for the purpose of reselling it, and so informed the appellee, and had obtained a purchaser ready, willing, and able to buy, who had agreed, in writing, to take the land in event a deed thereto should be executed and delivered to him on the 1st day of February, 1926. The price which the appellant's prospective purchaser agreed to pay for the land exceeded that which he paid the appellee therefor. The appellee's delay in conveying the land to the appellant prevented the appellant from complying with his contract to sell the land, and this suit is for the recovery of the loss thereby alleged to have been sustained by the appellant.

The grounds of the demurrer are as follows:

"The declaration states no cause of action against the defendant."

"That the averments in the declaration show conclusively that the plaintiff has elected his remedy in that he filed a suit for specific performance of the contract, same being No. 8636 in the chancery court, Harrison county, Mississippi, and that said suit was prosecuted to a final conclusion, and that judgment was obtained in the supreme court in favor of W. A. McVay, and the property sued for was conveyed to him by order of court."

The second of these is the ground here argued. The question which the appellee really argues is not one arising out of the doctrine of election of remedies, for no such question here arises, but is that the appellant, having failed to include his claim for the damages here sought to be recovered in his suit in equity for specific performance of the appellee's contract, is now barred from maintaining an...