Weeke v. Reeve
| Decision Date | 15 April 1913 |
| Citation | 61 So. 749,65 Fla. 374 |
| Parties | WEEKE v. REEVE. |
| Court | Florida Supreme Court |
Rehearing Denied May 6, 1913.
Appeal from Court of Record, Escambia County; E. D. Beggs, Judge.
Bill by H. Weeke against W. S. Reeve. Decree for defendants, and complainant appeals. Affirmed.
Syllabus by the Court
Where a party elects to adopt one of two inconsistent remedies, he cannot afterwards pursue the other, even though he fails in the remedy elected and used.
Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of litigation, the party cannot afterwards pursue another remedy by which he assumes a different and inconsistent status or relation to the subject-matter.
If a party is injured by the purchase of land because of the fraudulent misrepresentations of the vendor, the vendee may the redressed by a rescission of the conveyance in equity or by the recovery of damages in an action at law. These remedies are coexistent and inconsistent, and the election of one is a bar to the use of the other.
COUNSEL E. T. Davis and J. N. Hutchins, both of Pensacola, for appellant.
Blount & Blount & Carter, of Pensacola, for appellee.
On April 6, 1911, the appellant brought suit in the court of record for Escambia county seeking a rescission of a conveyance of land on the ground of fraudulent misrepresentations. A demurrer to the bill of complaint was sustained and amendments to the bill were made. To the amended bill the defendant Reeve pleaded that, prior to the filling of the bill of complaint, the complainant herein brought an action against the defendant to recover damages for fraudulent misrepresentations in the sale and conveyance of the land, and that such action had resulted in a final judgment for the defendant Reeve. This plea was sustained by the court. By way of replication to the plea, the plaintiff alleged that the common-law action for damages was not authorized by him or instituted with his knowledge or consent. Testimony was taken, and the court finding that the evidence sustained the plea and did not sustain the replication, dismissed the bill of complaint. A rehearing was denied and the complainant appealed.
Where a party elects to adopt one of two inconsistent remedies, he cannot afterwards pursue the other, even though he fails in the remedy elected and used. Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of litigation, the party cannot afterwards pursue another remedy by which he assumes a different and inconsistent status or relation to the subject-matter.
If a party is injured by the purchase of land because of the fraudulent misrepresentations of the vendor, the vendee may be redressed by a rescission of the conveyance in equity or by the recovery of damages in an action at law. These remedies are coexistent and inconsistent, and the election of one is a bar to the use of the other. See Scott v Walton, 32 Or. 460, 52 P. 180. In a suit to rescind the conveyance, the vendee repudiates the transfer, while in an action for damages the conveyance is ratified. See Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 So. 435; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116...
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... ... Birdsell Mfg. Co. v. Oglevee, 187 Ill. 149, 58 N.E ... 231; Roney v. H. S. Halvorsen Co., 29 N.D. 13, 149 ... N.W. 688; 15 Cyc. 262; Weeke v. Reeve, 65 Fla. 374, ... 61 So. 749; Mintz v. Jacob, 163 Mich. 280, 128 N.W ... 211; 15 Cyc. 259.) ... The ... original complaint ... ...
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Warren v. Warren
... ... legal residence. [73 Fla. 783] See Graham v. Florida Land ... & Mortgage Co., 33 Fla. 356, 14 So. 796; Weeke v ... Reeve, 65 Fla. 374, 61 So. 749; Saunders v ... Richard, 35 Fla. 28, 16 So. 679; Capital City Bank ... v. Hilson, 64 Fla. 206, 60 So ... ...
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...with reference to the right sought to be enforced." McCormick v. Bodeker, 119 Fla. 20, 160 So. 483, 484 (1935). In Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913), for example, the plaintiff alleged fraudulent misrepresentations by the defendant with respect to the sale of land. The plaintif......
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Intertype Corporation v. Pulver
...of them, even though he fails in the remedy originally elected and used. McKinnon v. Johnson, 59 Fla. 332, 52 So. 288; Weeke v. Reeve, 65 Fla. 374, 61 So. 749; Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 So. 435; American Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 So......