Pringle v. Hall

• Decision Date: 15 March 1899
• Docket Number: Civil 648
• Parties: JOHN PRINGLE et al., Defendants and Appellants, v. JOHN G. HALL, Plaintiff and Appellee
• Court: Arizona Supreme Court

56 P. 740

6 Ariz. 284

JOHN PRINGLE et al., Defendants and Appellants, v. JOHN G. HALL, Plaintiff and Appellee

Civil No. 648

Supreme Court of Arizona

March 15, 1899

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. Fletcher M. Doan Judge. Affirmed.

Statement of facts: --

Appellants and appellee, on the tenth day of March, 1897, entered into a written agreement, in which the appellants, under the name of Pringle Brothers, contracted to deliver to appellee, Hall five thousand head of cattle for the price of twelve dollars per head, in good shipping condition, at Holbrook, Arizona as follows: Twenty-five hundred head on the tenth day of May fifteen hundred head on the first day of June, and one thousand head on the tenth day of September. The cattle were to be good and smooth, and exclude stags, blinds, swaybacks, big-jaws, dwarfs, cripples, and cattle deformed. The purchaser, Hall, gave or paid to Pringle Brothers two dollars per head, or ten thousand dollars, at the time of making the agreement, as a partial or advance payment on said cattle; and Pringle Brothers agreed to forfeit two dollars per head for a failure on their part to complete their agreement. They delivered, under said contract, 2,945 head of cattle, which were paid for at the time of the delivery at the rate of twelve dollars per head, two dollars per head being included, the amount of deposit -- ten thousand dollars -- not being fully taken up; and failed to deliver 2,055 head. Hall brought action to recover damages for failure to deliver the 2,055 head under the contract at the stipulated amount of two dollars per head, and also to recover the two dollars per head deposited on the 2,055 head not delivered. He asked in said action for a reformation of the agreement, alleging that the contract, as signed, did not express the entire agreement of the parties, in that it was specially agreed "that the calves of the cows to be delivered that were calved on or after January 1, 1897, were to go with the cows, and not be counted as a part of the five thousand head of cattle; and that such contract was a part of the consideration that induced plaintiff to pay the sum of twelve dollars per head for five thousand head of cattle"; "that it was the intention of the parties that the contract should so express that part of the agreement, but by a mistake of the draftsman who drew the written contract that part of the agreement with reference to the calves born after the first day of January, 1897, was omitted"; and further asked that, after the instrument was so reformed, he be allowed to recover damages for the non-delivery of the calves calved after the first day of January, 1897. The defendants, Pringle Brothers, demurred to the complaint for the reason "that two causes of action are improperly joined together, which are not capable of the same character of relief." The demurrer was overruled, and the cause was tried to a jury. The special issues were submitted to the jury, the third and fourth of which relate to the completeness of the written contract. The third is: "Did the contract, as signed by the parties, include therein all of the terms of contract for the sale and delivery of cattle as agreed upon by the parties, and as they directed it to be drawn?" to which the jury returned answer, "Yes." The fourth is: "Was it agreed and understood by the parties to the contract that the calves of the cows delivered that were calved on and after January 1, 1897, were to be thrown in, and not counted," to which the jury answered, "No." Upon the contract as it stood without being reformed, the jury made such answers to the special issues submitted to them that the court rendered judgment for plaintiff and against defendants, Pringle Brothers, that he recover (1) the sum of $4,110 of the money advanced, and $383.50 damages for the use of the same; (2) $4,110 liquidated damages for the failure to deliver 2,055 head of cattle; (3) $500 damages for cattle delivered not in good condition; (4) and the court further adjudged that the defendants recover from plaintiff the sum of $185 damages on account of plaintiff refusing to accept thirty-seven head of cattle of the kind and condition specified in the contract, -- making a total judgment in favor of plaintiff in the sum of $8,918.50.

E. J. Edwards, P. T. Robertson, and J. S. Sniffen, for Appellants.

The demurrer to the complaint ought to have been sustained. Two causes of action were improperly joined and united together which were not capable of the same character of relief. One was to reform a contract, and purely equitable in its nature, and the other was for damages for a breach of the contract as reformed, and simply an action at law. Tit. XV, sec. 22, par. 670, Rev. Stats. Arizona; Harrison v. Juneau Bank, 17 Wis. 350; Gunn v. Madigan, 28 Wis. 158; Pomeroy on Remedies and Remedial Rights, sec. 459.

Moorman & McFarland, and George J. Stoneman, for Appellee.

Different modes of relief do not make different causes of action. Where a contract is both reformed and enforced the relief may be called double, -- first, the correction of the mistake, and, second, the damages for the breach. Globe Ins. Co. v. Boyle, 21 Ohio St. 119; Bidwell v. Astor Mut. Ins. Co., 16 N.Y. 357, 69 Am. Dec. 707, and note; Cahoon v. Bank of Utica, 7 N.Y. 486.

The supreme court of California in discussing this question says: "A complaint stating the facts, and praying that a deed be declared a mortgage and the title to the land be quieted, does not join two causes of action. . . . One cause of action is alleged, but two modes of relief." Louvall v. Gridley, 70 Cal. 507, 11 P. 777; Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Rep. 823, 15 P. 82; McClurg v. Phillips, 49 Mo. 315.

This question is settled by the decision of the supreme court of the United States in Ely v. New Mexico etc. R.R. Co., 129 U.S. 291, 9 S.Ct. 293, reversing the supreme court of this territory. See, also, Hornbuckle v. Toombs, 85 U.S. 291; Hirshfield v. Griffith, 18 Wall. 657; Davis v. Bilsland, 18 Wall. 659; Henderson v. Dickey, 50 Mo. 151; Paddock v. Somes, 102 Mo. 226, 14 S.W. 746; Blair v. Chicago etc. R.R. Co., 89 Mo. 383, 1 S.W. 350; McHoney v. German Ins. Co., 44 Mo. 426; Ware v. Johnson, 55 Mo. 500; Gormley v. Potter, 29 Ohio St. 597; Moore v. Ogden, 35 Ohio St. 434; Globe Ins. Co. v. Boyle, 21 Ohio St. 119; Stock Growers' Bank v. Newton, 13 Colo. 245, 22 P. 444; Pfister v. Darcy, 65 Cal. 403, 4 P. 393; Giant Powder Co. v. San Diego F.F. Co., 78 Cal. 193, 20 P. 419; Barley v. Dale, 71 Cal. 34, 11 P. 404; Jacob v. Lorens, 98 Cal. 332, 32 P. 119; Gates v. Kieff, 7 Cal. 124; Waterson v. Saldunbehere, 101 Cal. 107, 35 P. 432; Morehout v. Higuerra, 32 Cal. 289; Tompkins v. Sprout, 55 Cal. 31; Hutchins v. Ainsworth, 63 Cal. 286; Gallman v. Perry, 47 Miss. 146; Orendorf v. Budlong, 12 F. 24; Kahn v. Kahn, 15 Fla. 400; Montgomery v. McEwen, 7 Minn. 351; St. Paul etc. R.R. Co. v. Rice, 25 Minn. 278; Nichols v. Randall, 5 Minn. 304; Turner v. Althaus, 6 Neb. 55; Wineland v. Cochran, 9 Neb. 484, 4 N.W. 67; Keeres v. Gaslin, 24 Neb. 310, 38 N.W. 797; Stewart v. Carter, 4 Neb. 564; New York Ice Co. v. N.W. Ins. Co., 23 N.Y. 357; Davis v. Morris, 36 N.Y. 569; Latlin v. McCarty, 41 N.Y. 107; Bockes v. Lansing, 74 N.Y. 437; F. and M. National Bank v. Rogers, 17 N.Y. St. 381, 1 N.Y.S. 757; Sternberger v. McGovern, 56 N.Y. 12; Beck v. Allison, 56 N.Y. 366, 15 Am. Rep. 430; O'Sullivan v. New York etc. R.R. Co., 25 N.Y. St. 903, 7 N.Y.S. 51; Robinson v. Smith, 53 Hun, 638, 7 N.Y.S. 38; Quarl v. Abbott, 102 Ind. 233, 52 Am. Rep. 662, 1 N.E. 476; Frank v. Keesler, 30 Ind. 8; Brown v. State, 121 Ind. 235, 23 N.E. 75; Fite v. Pringle, 132 Ind. 312, 21 N.E. 1054; Rigsbee v. Trees, 21 Ind. 225; J.L. Roper Lumber Co. v. Wallace, 93 N.C. 22; Burton v. Collins, 118 N.C. 196, 24 S.E. 122; Dawson Bank v. Harris, 84 N.C. 206; England v. Garner, 86 N.E. 366; People v. Met. Tel. Co., 31 Hun, 598; Scarborough v. Smith, 18 Kan. 399; Johnson v. Stratton, 6 Tex. Civ. App. 431, 25 S.W. 688; Lyon-Thomas Hd. Co. v. Perry S. Mfg. Co., 88 Tex. 468, 27 S.W. 100; Cassaday v. Waco Tap. R. Co., 78 Tex. 131, 10 S.W. 543; Stock Growers' Bank v. Martin, 13 Colo. 245, 22 P. 444; Vail v. Hammond, 60 Conn. 374, 25 Am. St. Rep. 330, 22 A. 954; Butler v. Barnes, 60 Conn. 170, 21 A. 419; McKinnis v. Freeman, 48 Iowa 364; Stapleton v. King, 40 Iowa 278; United States v. Williams, 6 Mont. 379, 12 P. 851; Brewer v. McCain, 21 Colo. 382, 41 P. 822; Edde v. Pashpah-o, 5 Kan. App. 115, 48 P. 844; American Savings etc. Assn. v. Burghardt, 19 Mont. 323, 61 Am. St. Rep. 507, 48 P. 391; Thomas v. Thomas, 41 N.Y. 503; Threatt v. Brewer Min. Co., 49 S.C. 95, 26 S.E. 970; State v. Parsons, 147 Ind. 579, 62 Am. St. Rep. 430, 47 N.E. 17; Swanson v. Kirby, 98 Ga. 586, 26 S.E. 71; Daniels v. Baxter, 120 N.C. 14, 26 S.E. 635; Ingram v. Abbott, 14 Tex. Civ. App. 583, 38 S.W. 626; Vermont L. and T. Co. v. McGregor, 5 Idaho, 320, 51 P. 102; Brady v. Linehan, 5 Idaho, 732, 51 P. 761; Dykman v. Keeney, 47 N.Y. 352.

OPINION

STREET, C.J. (after stating the facts.) --

1. As to the demurrer to the complaint that causes of action were united which required separate and different relief, one legal and the other equitable: Before the adoption of the reform procedure now existing in so many states, it was the rule that application would have to be made to a court of equity to reform the instrument, and then,...