262 P. 639 | Wash. | 1928
That this "tangled skein" between these same parties has received previous consideration *258
before this court, several times, is evidenced by the reported decisions in
This case, a suit for $1,640 commission for the sale of real estate, was instituted in the superior court on May 29, 1923. Just previously, May 21, 1923, these respondents, as plaintiffs, had instituted an action for the rescission of the contract involved in the controversy, as against Hopkins, and for damages for fraud and deceit, as against Godefroy.
In untangling the skein, it is necessary, first, to note that, in the action against Hopkins and Godefroy, a demurrer was interposed, and sustained on the ground that there was an improper joinder of causes of action. Thereafter, an amended complaint was filed against Hopkins and wife alone. Upon a dismissal being granted by the trial court in favor of Hopkins and wife against plaintiffs, an appeal was taken, which resulted in affirming the judgment sustaining the demurrer for misjoinder of causes of action; the court holding (
". . . so far as the action was one of rescission, it disavowed the contract and sought recovery of consideration . . . So far as it was an action for damages against Godefroy, it affirmed the contract and sought recovery thereon. The law does not permit disallowance and affirmance of a contract in the same complaint."
The dismissal upon the facts, as against Hopkins and wife, was affirmed because Reilly did not rely upon any representations or statements made by Hopkins, but made his own investigation, and upon information he received, was satisfied with the deal and acted thereon. *259
In the case reported in
"Many questions are raised and discussed which we do not find it necessary to now mention. It will be sufficient to say that, except in the matters hereinafter specifically referred to, we find no error on the part of the trial court.
"The chief and vital questions are whether there was evidence on the part of appellants sufficient to carry the case to the jury, and whether or no the judgment in Reilly v. Hopkins,supra, was determinative of the issues here."
This case, with some apparent inconsistencies and discrepancies, which were for the jury to consider and reconcile, was tried upon substantially the same facts as were adduced in the former trials.
Notwithstanding the insistence and able ingenuity of counsel in seeking to differentiate and avoid the effect of the former adjudications, we are of the opinion that most of the questions here raised were passed upon in the decisions in
Summaries of the issues of law and fact involved may be found in the previous decisions.
At the trial in this case upon the original complaint and the third amended answer and cross-complaint and reply and answer thereto, the trial court very ably simplified and summarized the issues to be determined by the jury under the cross-complaint of respondents, in accordance with the previous decisions of this court, as follows:
(1) That the district in which the Hopkins land lay had ample water at a cost of $1.50 per acre per year.
(2) That no owner of lands in this irrigation district has ever permitted any of their lands to go delinquent for failure to pay the irrigation assessments or permitted any part thereof to be sold.
(3) That large profits had been made for a number of years off the lands.
(4) That there was an abundance of water for irrigating every acre of land in the district.
In the decision in
We also held in that case that —
"If there were no misrepresentations, or were misrepresentations not resulting in injury to the respondents, the appellant is entitled to recover the commission agreed to be paid him; or, if there were misrepresentations resulting in injury, and the loss suffered thereby is less than the agreed commission, the appellant is entitled to recover the difference between the amount of that loss and the amount of the agreed commission. *261 On the other hand, if there were misrepresentations causing a loss to the respondents, and this loss equals the amount of the agreed commission, the respondents are entitled to a verdict in their favor without more; if the amount of the loss exceeds the amount of the agreed commission, they are entitled to a verdict for the excess of loss over the commission. On the new trial, the instructions of the court and the forms of verdict should meet these conditions, that there may be no room for controversy as to the effect of the findings of the jury."
The trial court, accordingly, instructed the jury strictly in accordance with the foregoing direction. It also, in conformity thereto, submitted to the jury for consideration four forms of verdicts, as follows:
No. 1. A verdict for plaintiff in the full sum of $1,640, with interest from March 24, 1923, at six per cent. to date of trial, which the jury were instructed plaintiff would be entitled to unless the sum was reduced or wiped out by damages sustained by the defendants.
No. 2. A verdict for the plaintiff in case the defendants suffered damages, as explained, less than the agreed commission, in which case the verdict should be for the difference.
No. 3. A verdict for the defendants, to be used in case the damages equaled the amount of the commission, in which case the jury should insert no amount of damages.
No. 4. A verdict for the defendants, to be used in case the damages exceed the amount of the commission, in which case the jury were to insert the excess of the damages above the commission, as instructed.
The jury returned a verdict on form No. 3, simply for the defendants.
Since the instructions and the form of verdict returned at the trial of this case were in strict accord *262
with our decision in
It is urged that, since the cross-complaint contains no allegation as to either the market or the actual value of the Hopkins land at the date of the exchange, or at any other time, nor any allegation as to what the market or other value of the Hopkins land would have been, had conditions been as the cross-complaint alleged that Godefroy represented them to be, certain evidence received by the court as to such values, and instruction No. 4 given by the court upon the question of damages thereunder, was improperly submitted to the jury, and the jury was thereby directed to return a verdict in favor of the defendants without assessment of damages.
The evidence complained of as having been erroneously received was, first, that of Reilly himself as to the values of his Canadian lands on exchange; second, that of one Taylor as to the market value of the Hopkins land; and for the further reason that Taylor was not qualified as an expert to testify as to the market values, and affirmatively disclosed that he could have no such knowledge as would qualify him to testify on that question.
The testimony of Reilly was held, in
Instruction numbered 4, complained of, was in accordance with the decisions of this court, both in
[2] A critical examination of the cross-complaint discloses that it is somewhat defective in the matters specified by appellant. *263
But, granting that it is defective, whatever defect there was in it was such as could have been cured by a trial amendment, within the prescriptions laid down in
The situation in this case is very similar to that in theHubbard case, supra.
The instruction complained of, therefore, based upon the evidence in the case, was correct. Hence, there was no error under either of assignments 1, 2, 3, 4 or 5.
[3] The sixth claim of error is in rejecting the plea of election of remedies and excluding evidence, consisting of the record in the case of Reilly v. Hopkins, supra, offered in support of that plea, which record, it is urged, conclusively shows that the respondents, previously to interposing their cross-complaint, had, on the same grounds, sued Dr. Hopkins for rescission.
This assignment is very insistently and vigorously argued and appellant stoutly contends that the decision in
We find that in
In the opinion in
The principle of election of remedies is often referred to as estoppel. 20 C.J. 4; Baker v. Edwards Son,
[4] Furthermore, the doctrine of election of remedies cannot be applied between one of the parties to a contract and a third person, a stranger thereto, since it is applicable only to the parties to the contract. 20 C.J. 18. There was no privity between these parties. In that first action, these cross-complainants sought damages for deceit against Godefroy.
[5] Conceding that the first action by respondents against Hopkins and Godefroy, including therein allegations and a demand for rescission of the contract, constitutes an election, it was by this court held a mistake in remedy. It further held that, upon the facts, respondents had no such remedy against Hopkins. *265
This court has always held that a mistake in remedy is not an election. Gray v. Hickey,
In the last case cited we quoted with approval from 9 R.C.L. 962, as follows:
"`The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a fancied remedy that never existed and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed them to be, or the law applicable to the facts is found to be other than supposed, though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy. And likewise a mere mistake in selecting a wrong party does not preclude a party from asserting liability against the person liable when he is discovered. . .. '"
Those rules and our decisions exactly apply here. See, also:Nysewander v. Lowman,
Moreover, as before stated, this question was inferentially passed upon in the decisions in
We find no reversible error in the record, and the judgment is affirmed.
MACKINTOSH, C.J., FULLERTON, ASKREN, and MAIN, JJ., concur.
