Cooke v. Cook

110 Ala. 567 | Ala. | 1895

HEAD, J.

On June 25, 1891, appellee, John F. Cook, brought suit, in the Walker circuit court, against appellant, John E. Cooke, one count of the complaint being as follows: “Plaintiff claims of defendant the further sum of two thousand dollars due by a written contract entered into by defendant on the 17th day of September, 1890, which contract is in words and figures as follows, to-wit:

‘The State of Alabama, )

Jefferson County. )

‘This agreement made this the 17th day of September, 1890, by and between John F. Cook of Anniston, Ala., and John E. Cooke, of Marietta, Ala., witnes-seth, that John F. Cook sells to John E. Cooke lots Nos. 20, 21, 22, 23, and 24 in block No. 208 on , the N. W. corner of 7th Ave. & 27th Streets in Birmingham, Ala., for the sum of six thousand, one hundred and fifty dollars ($6,150) payable as follows : $2,000 December 25th, 1890; §2,050 December 25th, 1,891; $2,100 December 25th 1892. It is understood and agreed that the titles to the lots described above is to be made by John F. Cook to John E. Cooke as soon as John F. Cook can do so : say within thirty (30) days, and said John E. Oooke to execute the notes to John F. Cook at same time. Interest to begin on each note-December 25th, 1890.

Witness, John F. Cook (Seal)

D. B,. Dunlap. John E. Cooke. (Seal)’

Plaintiff avers that defendant has wholly failed and refused to comply with the terms of said contract in any respect. And plaintiff further avers that he was and is still ready and willing and offered to comply with the terms of said contract, on his part. And plaintiff further avers that he did comply with the terms of the contract on his part.”

The cause was tried at the February term 1892, upon the general issue and certain special pleas of fraud, and failure of consideration, and resulted in a verdict and judgment for the plaintiff for the sum of $2,184.88 and costs, which judgment was affirmed, on appeal, by this court.

On January 15th, 1892, the same plaintiff brought another suit against the same defendant, in the same court, one count of the complaint being in the same words and figures as the count hereinabove set out, except that the amount claimed was $2,050; and on December 2d, 1893, another suit, in the same court, with one of the counts exactly the same as the foregoing, except that the amount claimed was $2,100. To these two last named actions, the defendant interposed practically the same defenses which were made to the first suit, and, further, pleaded, specially, in proper form, the former adjudication. The plaintiff replied to the other special pleas, the said former adjudication. The two actions were consolidated, by order of the court, and tried as one, at the February term 1894, and resulted in a verdict and judgment for the plaintiff for the sum of $5,032, and costs ; the court, in effect, holding that the several actions were for separate and several instalments of the purchase price of the lands, mentioned in the contract set out in the complaints ; that the defense of res judicata was not sustainable, and that the replications of res judi-cata were sustained. From that judgment this appeal is prosecuted.

It is obvious the pleader treated each of the actions as a suit for a separate instalment of the purchase price of the lands, recited, in the contract declared on, as being payable in specified sums, at specified times, upon the theory that the written instrument imported a promise, on the part of the vendee, to pay those sums, severally, at the respective times specified. Whether or not the agreement, if it had stopped with its recital of the terms of the sale, imported several promises, for the breach of which an action or actions would be supported by the terms of the writing itself, its is quite clear from the stipulations which followed, that the recitals mentioned were merely descriptive, and were introduced as inducement to the only promissory engagements of the parties; which were, on the part of the vendee, to execute within thirty days, the several written promises to pay the several instalments, at the specified times,■ respectively, with interest to begin at a time subsequent to the date of the contract; and on part of the vendor, concurrently therewith, to make titles to the land to the vendee.—Cooke v. Cook, 100 Ala. 175. It is plain, therefore, that the instrument would not suppport an action, as upon a promise to pay the instalments, or either of them. When the vendee refused to execute the notes, as agreed, the vendor being in no default, he thereby repudiated and broke the contract of purchase, entitling the vendor, if he chose to pursue that remedy rather than demand, at the proper time, specific performance, to an immediate action for the breach of the contract in its entirety, and a recovery of all damages proximately resulting from the breach. What the true measure of such damage is, it is not now material to determine. The courts of different jurisdictions differ on the question. Some hold that where the vendee refuses tu perform a stipulation of the contract, the entire purchase price is recoverable; while others hold that the difference between the contract price and the value of the land, at the time of the breach, or of the trial, is the true measure. The subject is amply treated, both under the English and American authorities, in an extended note to Garrard v. Dollar, 67 Am. Dec. 271. It seems quite probable that where the vendor has executed the contract on his part by a conveyance of the title which, as was alleged on the first, and, indeed, the subsequent actions, was done, in this case, the entire purchase money is a true measure of damages. But, at all events, it is unquestionably true, that in an action on the contract alleging a breach of an entire material stipulation undertaken by a party to be performed in furtherance of the execution of the sale and purchase, an action immediately lies, at the election of the other party, and all damages, present or prospective, growing out of the whole agreement, are recoverable ; and but one action can be maintained upon the contract. This would, indeed, be true if the written agreement had, in terms, expressed a promise to pay the several in-stalments, if the declaration alleged not only the failure to pay the instalment, but a breach of the entire stipulation as well, for the reason, just stated, that the breach of that stipulation opened the way to the plaintiff to a recovery of all damages. In discussing a case of analogous principle, the New York court observes: “The right of action is as perfect on a neglect or refusal to give the note or bill, as it can be after the credit has expired. The only difference between suing at one time or the other relates to the form of the remedy; in the one case, the plaintiff must declare specially, in the other he may declare generally. The remedy itself is the same in both cases. The damages are the price of the goods. The'party cannot have two actions for one breach of a single contract, and the contract is no more broken after the credit expires, than it was the moment the note or bill was wrongfully withheld”.—Hanna v. Mills, 21 Wend. 90, and cases cited in note to that case, in 34 Am. Dec. 218. See also, Fail & Miles v. McRee, 36 Ala. 61: Mason v. Ala. Iron Co., 73 Ala. 270; Withers v. Knox, 4 Ala 138, 2 Suth. on Dam., 356.

We have seen that in the former action, the judgment in which is now pleaded as res judicata, the complaint, in the count hereinbefore set out, was upon the written contract, alleging a breach of all its stipulations on the part of the defendant, and readiness and offer to perform, and, indeed, actual performance, on the part of the plaintiff. Thus the way was open to the plaintiff to prove and recover all damages sustained by the breach of the contract as an entirety, not exceeding, in amount, the sum claimed. The cause of action was thereby merged in the judgment rendered, precluding any further action on the contract. The court erred in giving the general charge for the plaintiff, and refusing it for the defendant.

Reversed and remanded.