Sweeney v. American National Bank, 6858

• Decision Date: 26 May 1941
• Docket Number: 6858
• Citation: 62 Idaho 544,115 P.2d 109
• Parties: D. J. SWEENEY, Appellant, v. AMERICAN NATIONAL BANK and CHARLES F. HANMER and MATA HANMER, Respondents
• Court: Idaho Supreme Court

115 P.2d 109

62 Idaho 544

D. J. SWEENEY, Appellant, v. AMERICAN NATIONAL BANK and CHARLES F. HANMER and MATA HANMER, Respondents

No. 6858

Supreme Court of Idaho

May 26, 1941

ACTION-DECLARATORY JUDGMENT.

1. Generally, in determining whether to grant declaratory judgment, criteria is whether a declaratory judgment will clarify and settle the legal relations in issue, and whether such a declaration will afford relief from uncertainty and controversy giving rise to the proceeding. (Sess. Laws, 1933 chap. 70.)

2. In declaratory judgment proceeding, the court has jurisdiction both to construe a contract and to award damages. (Sess Laws, 1933, chap. 70.)

3. It is the policy of the law that all differences should be decided in one proceeding if possible.

4. In contractor's action against building owner and bank for declaratory judgment construing tripartite agreement under which the contractor agreed to look to the owner individually for the payment of cost of building in excess of a certain sum until mortgage held by bank was satisfied, where court had jurisdiction of parties and subject matter and action was proper one for declaratory judgment, court, after construing the contract and determining that there was something due from owner to contractor, erred in failing to go further and determine amount due the contractor. (Sess. Laws, 1933, chap 70, sec. 9.)

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action by D. J. Sweeney against the American National Bank, Charles F. Hanmer and Mata Hanmer, his wife, for a declaratory judgment interpreting a contract between the parties. Plaintiff appeals from the judgment. Reversed and remanded with directions.

Reversed and remanded with instructions. Costs on appeal to be equally divided.

St. Clair, Peterson & St. Clair, and Anderson, Bowen & Anderson, for Appellant.

A declaratory judgment ought, in equity, to give real relief, so that a second independent suit need not be required to be brought, when all matters can be litigated in one action; and if the petition includes a general prayer for other relief, the court may grant such other relief as the case warrants. (1 C. J. S. 1032; National City Bank of New York v. Waggoner, 243 N.Y.S. 299, 230 A.D. 88, 175 N.E. 298, 255 N.Y. 527; Tolle v. Struve, 12 P.2d 61, 124 Cal.App. 263.)

If it is necessary to a grant of complete relief, further relief may be had in a declaratory judgment action. (Berman v. Wreck-a-Pair Building Company, 234 Ala. 293, 175 So. 269.)

The court may retain jurisdiction of the case in order to grant further relief upon proper application, so as to give full and effectual relief. (Morris v. Ellis, 221 Wis. 307, 266 N.W. 921.)

E. H. Casterlin, John L. Bloem, and Ralph L. Albaugh, for Rospondents.

The purpose of the Declaratory Judgment Act is to give a full and adequate remedy where none existed before (Brindley v. Meara, 209 Ind. 144; 101 A. L. R. 628; 16 Am. Jur. 280 et seq.), rather than supplant or displace pre-existing and effective remedies (Ibid.) or to provide a substitute for other regular actions. (Washington-Detroit Theatre Co. v. Moore, 229 N.W. 618, 68 A. L. R. 105; Annot. 87 A. L. R. 1220.) That purpose was accomplished by the trial court when it entered its final judgment and the plaintiff can now pursue a "regular action" and utilize a pre-existing and effective remedy in the proper county.

BUDGE, C. J. Morgan, Holden, and Ailshie, JJ., concur, GIVENS, J. (Concurring Specially).

OPINION

BUDGE, C. J.

This action was commenced under the provisions of Chapter 70, Session Laws, 1933, known as the Declaratory Judgment Act. The complaint among other things, alleged that on September 13, 1937, appellant Sweeney entered into a written contract with respondents Hanmer and wife, and the American National Bank of Idaho Falls for the construction of a building on the premises of the Hanmers in Lemhi county for approximately $ 20,000.00, of which the Hanmers were to put up $ 10,000.00 and the Bank the other $ 10,000.00 to be secured by a mortgage on the building. The contract stipulates that Sweeney must complete the building even though it may cost more than $ 20,000.00, but that in the event the cost exceeds $ 20,000.00, Sweeney must look to the Hanmers for the excess. The complaint also alleged that on September 13, 1937, appellant entered into an oral contract with respondent Hanmer, representing the community of himself and wife, by virtue of which contract, appellant agreed to perform work and labor, or supply the same, and furnish material for the construction of the building for the Hanmers; that the materials were furnished and labor performed by appellant. It is alleged in the complaint that the materials so furnished and the labor so performed under the contract amount to the total and agreed reasonable value of $ 23,850.00, and that there is a balance now owing of $ 5,174.80 together with interest thereon.

It is further alleged that the written contract between appellant Sweeney, respondents American National Bank and the Hanmers is indefinite and uncertain in that the contract provides as follows:

"Said party of the second part further agrees that should the sum of Twenty Thousand Dollars be insufficient in amount to pay the costs and expenses of the construction of said building, according to the plans and specifications thereof, to finish said construction and not to place any liens or attachments upon said lot and buildings, or to permit any liens or attachments to be placed thereon by any other person furnishing material or labor, so long as said note and mortgage given to the American National Bank of Idaho Falls remains unpaid and unsatisfied, but during such time will look to said Charles F. Hanmer for the payment of such additional expense and will give him a reasonable time within which to pay the same, following the payment and satisfaction of said note and mortgage given to said bank."

At another place in the contract it provides as follows:

"It being the intent and purpose of all the parties herein that in the construction of said building no liens or claims of any kind shall be filed against the building growing out of the construction thereof, either in labor performed or materials furnished, until the note and mortgage held upon said property by the American National Bank of Idaho Falls is fully paid, satisfied, and discharged, and that should the cost of constructing said building exceed the sum of Twenty Thousand Dollars, the said contractor, D. J. Sweeney, will look to said Charles F. Hanmer, individually, for the payment of this additional expense, and will file no liens or claims upon said lot and premises until said mortgage and note thereby secured, held by the American National Bank of Idaho Falls, is fully paid, satisfied and discharged; and that in the handling and payment of said Ten Thousand Dollars in the construction of said building said bank shall act as trustee and make payment only upon proper vouchers given therefor."

Appellant Sweeney contends that the two foregoing provisions of the contract are conflicting in that the first one indicates that he must wait to bring his proposed action until such time as the American National Bank is fully paid; whereas the second paragraph cited above, indicates that he may bring his proposed action at once for the alleged balance due, but that any judgment so obtained shall not become a lien on the property until the American National Bank is fully paid.

A controversy has arisen between respondents and appellants relating to their legal status, rights and duties under the written contract and the oral agreement in that the sum of $ 5,174.80 is claimed by appellant to be owing, and now due, and collectible from Hanmer and wife, whereas respondents dispute said claim as to any amount being owing at all, or now due, and contend that if any money is owing, that it is not due until the note and mortgage referred to in the contract is paid in full.

Appellant sought a declaration of his status, rights and duties in the premises, including a construction of the contract, and asked that in the event it should be determined that appellant must wait to collect the money that is owing to him from respondents Hanmer, until respondent American National Bank is paid in full, then, in that event, that it be declared and adjudged the duty of the Bank to collect the money as the same matures, to the end that appellant will not, and shall not, suffer any injury or damage by reason of the inactivity or failure of the Bank to collect the money.

The respondents Hanmer filed their motion and affidavit of merits for a change of venue to Lemhi county, the county of their residence. They also filed a demurrer and an amended demurrer. The Bank filed a demurrer and a motion to separately state. All of these motions and demurrers were over-ruled, but the court so ruled in denying said motions and demur...