Taylor v. Robertson Petroleum Co.

• Decision Date: 08 May 1943
• Docket Number: 35864.
• Citation: 137 P.2d 150,156 Kan. 822
• Parties: TAYLOR v. ROBERTSON PETROLEUM CO. et al.
• Court: Kansas Supreme Court

137 P.2d 150

156 Kan. 822

TAYLOR v. ROBERTSON PETROLEUM CO. et al.

No. 35864.

Supreme Court of Kansas

May 8, 1943

Syllabus by the Court.

The doctrine of election of remedies can apply only where two or more inconsistent remedies actually exist at time election of one remedy is made.

The doctrine of election of remedies has no application where two or more existing remedies are consistent, and under such circumstances a party may pursue one or all of them so long as he obtains but one satisfaction.

The doctrine of election of remedies is an application of one phase of law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions.

The doctrine of election of remedies goes to essence of remedy and not form, since it is inconsistency of demands which makes election of one remedial right an estoppel against assertion of other, and not fact that forms of action are different.

Actions are "inconsistent" within meaning of doctrine of election of remedies when one alleges what other denies, or allegation in one necessarily repudiates or is repugnant to other.

Whether coexistent remedies are inconsistent so as to require an election is to be determined by a consideration of relation of parties with reference to right sought to be enforced as asserted in pleadings.

An election of remedy with knowledge or means of knowledge of facts bars pursuit of a later inconsistent remedy.

Where plaintiff had available two inconsistent remedies commencement of an action based upon one remedy effected an "election of remedies", and fact that first action was dismissed did not avoid effect of election.

Where a person prosecutes an action based upon a misapprehension of law as to his legal rights, no "election of remedies" results.

Where plaintiff had available two inconsistent remedies and filed an action founded upon one of such remedies, there was no "misapprehension of law" so as to permit plaintiff to avoid effect of his election.

Action for recovery of alleged interest in oil leases upon theory that defendants had not acquired plaintiff's interest constituted an "election of remedy" barring subsequent action for recovery of money judgment from defendants based upon a contract alleged to have been made prior to filing of first action, which contract required plaintiff to convey his interest to defendants.

Actions which proceed on theory that title to property is in plaintiff are inconsistent with those which proceed on theory that title is in defendant, hence, where such actions are available as alternate remedies, the selection of one is an "election of remedies".

1. The doctrine of election of remedies applies only when two or more inconsistent remedies actually exist at the time the election of one remedy is made.

2. An election of one remedy with full knowledge, or means of knowledge, of the facts bars the pursuit of a later wholly inconsistent remedy when the remedy first chosen is not based upon a misapprehension of legal rights.

3. The doctrine of election of remedies, or assertion of rights goes not to the form but to the essence of the remedy. It is the inconsistency of demands 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.

4. The doctrine of election of remedies is an application of one phase of the law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions.

5. To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.

6. Whether coexistent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.

7. The fact that a first action did not proceed to judgment, but was dismissed without prejudice, does not avoid the effect of the election. The commencement of an action or any decisive act of a party makes the election final although such action is not prosecuted to a finality.

8. Where a person with full knowledge of the facts deliberately elects to bring an action for the recovery of an alleged interest in oil and gas leases and for a corresponding portion of the oil produced therefrom upon the definite and distinct theory certain defendants had not acquired his interest therein and prays that their alleged interest be cancelled and set aside, such assertion of rights and denial of rights constitutes an election of his remedy which is final and bars a subsequent action for the recovery of a money judgment from such defendants where the second action is based upon a contract, alleged to have been made and performed prior to the filing of the first action, which required plaintiff to convey his interest to such defendants and to assist them in acquiring the interests of others therein.

Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.

Action by W. S. Taylor against Robertson Petroleum Company and J. R Robertson and others to recover a sum alleged to be due under a contract. From a judgment of dismissal, plaintiff appeals.

Roy L. Rogers, of Wichita (Joe T. Rogers, of Wichita, on the brief), for appellant.

Glenn Porter, of Wichita (Getto McDonald, Dwight S. Wallace, William Tinker, and Kenneth W. Pringle, all of Wichita, on the brief), for appellees.

WEDELL Justice.

The sole question presented in this case relates to election of remedy.

The plaintiff, W. S. Taylor, filed two actions. The first action was dismissed without prejudice. In the second action it was held the rights asserted in the first action were inconsistent with those asserted in the second and that the latter action could not be maintained. From that ruling plaintiff appeals.

The first action was instituted by plaintiff, W. S. Taylor, and one S. L. Milton in the district court of Stafford county on the 16th day of November, 1938. It was dismissed on the 3rd day of April, 1939, and the second action was filed in the district court of Sedgwick county on the 20th day of September, 1941. The averments of the first petition were in substance as follows:

Plaintiffs and the defendants, Clyde Barker and E. C. Swanson, on January 13, 1938, associated themselves as joint adventurers pursuant to an oral agreement to acquire oil and gas leases and royalty interests which each of them agreed to assign to a corporation to be formed and named The Eastern Oil and Royalty Company; they obtained a charter but no officers of the corporation had been elected; on the date of that agreement Clyde Barker and E. C. Swanson obtained an oil and gas lease from Wayne T. Hartnett and Opal J. Hartnett, his wife, on certain described lots in the original town of Zenith in Stafford county; the term of the lease was three months and as long as oil and gas, or either of them, was produced in paying quantities; the lease was assigned to the corporation January 24, 1938; the lease and assignment were promptly recorded; work was commenced on the lease but a well was not completed within three months; the joint adventurers orally agreed Barker should obtain a three months' extension of the lease; Barker obtained a new lease for three months beginning March 1, 1938, and ending June 1, 1938, and as long thereafter as, etc., on the same lots and on additional lots in the original town of Zenith, which lease was executed by the Hartnetts and other landowners; that lease was executed to Barker alone as lessee and was promptly recorded; Barker, in violation of his trust, refused to assign the lease to the corporation and refused to hold it for the use and benefit of his associates; on May 20, 1938, W. S. Taylor filed an affidavit in the office of the register of deeds of Stafford county which was duly recorded; in the affidavit Taylor, in substance, asserted:

Barker held the leases on the lots described in the affidavit in trust for himself, the affiant and E. C. Swanson; affiant had expended approximately $2,800 in cash in acquiring leases on the lots described and had further expended a large amount of money to cover personal expenses in connection with the joint venture; affiant is entitled to be reimbursed for the money so expended; affiant owned and held the leasehold jointly and equally with Clyde Barker and E. C. Swanson; the affidavit was recorded to give notice of affiant's right in and to said leasehold to persons who might deal with Barker for the same.

The petition in substance further alleged:

The defendants, The Robertson Petroleum Company and J. R. Robertson, had full knowledge of the oral agreement between the joint adventurers and that Barker had acquired the leases for the use and benefit of each of them; notwithstanding such knowledge The Robertson Petroleum Company and J. R. Robertson purchased the lease from Barker and recorded the assignment thereof; the State Corporation Commission made an order requiring a segregation of lots in the town of Zenith into ten acre tracts for the purpose of drilling one well on each of such tracts; The Robertson Petroleum Company acquired such tracts and caused wells to be drilled thereon; the defendant Stanolind Pipeline Company laid pipes to such wells and purchased the oil produced therefrom in disregard of the rights of plaintiffs.

The prayer of the petition was in substance: That plaintiffs or The Eastern Oil and Royalty Company be declared to be the owners of the lands described and entitled to a just proportion of the oil and gas produced by The Robertson Petroleum Company or J. R. Robertson; that the...