290 S.W. 849 | Tex. App. | 1927
That suit resulted in a judgment by the trial court declaring that the instrument executed by Bell and wife in 1916 to appellant was an extension agreement of the unpaid purchase notes which Bell owed appellant, and declared same of no force and effect as a deed. In his motion for new trial in said cause in the trial court appellant asked, in the alternative, if the trial court refused to grant him a new trial, that the trial court render judgment in his favor against Bell for the amount due on the vendor lien notes. This the trial court refused to do. On appeal the Court of Civil Appeals reformed and affirmed the judgment of the trial court (White v. Bell,
"It is necessary that the judgment as entered [by trial court] be reformed, so that whatever unpaid vendor's lien notes and vendor's lien may exist against the land involved to secure the payment of said notes will remain unimpaired and unaffected by the judgment of the trial court."
Appellee Bell contends that appellant is not entitled to recover in this suit, because, when appellant filed his cross-action in the case which he (Bell) brought against appellant to establish the fact that the deed was an extension agreement, appellant had two distinct, inconsistent remedies, one being the foreclosure of the vendor's lien and the other a suit to rescind the contract and recover the land; that appellant, by electing to rescind the contract and recover the land, was thereby barred from maintaining a suit to recover on the notes. Appellees further alleged that the notes provided for usurious interest, and were therefore unenforceable. At the conclusion of the testimony the trial court instructed the jury to return a verdict for appellees, presumably on the theory that appellant was not entitled to recover because he had elected to attempt to rescind the contract in the former suit.
It seems to be a well-established principle of law that a judgment rendered by a court is binding on the parties to said litigation in so far as the judgment disposes of the questions that were put in issue. Grayson County Nat. Bank v. Wandelohr,
It seems to be the well-established rule of law in this state that, where a party has two separate, distinct, and inconsistent remedies, he may in the same suit ask for alternative relief, or he may elect which remedy he will pursue, and, if he elects a remedy where he has two separate, distinct, inconsistent remedies and prosecutes same to final judgment and loses, he is thereby barred from enforcing any other remedy. Bauman v. Jaffray,
"An election (of remedies) can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election is made. Hence, the fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a remedial right which he erroneously supposes he has, and is defeated because of such error, does not constitute a conclusive election and does not preclude him from thereafter prosecuting an action based upon an inconsistent remedial right."
In our opinion, appellant, at the time he filed his cross-action in the former suit, by which he sought to rescind the contract and recover the land, did not waive his right to thereafter sue on the notes and foreclose the vendor's lien, because at said time he did not have the right to rescind, since it was an established fact that at that time two of the series of unpaid vendor lien notes had been by appellant transferred, and were at said time held by persons who were not in any way parties to said suit. Appellant, in attempting to declare the contract rescinded, and seeking to recover the land by reason thereof, was attempting to pursue a remedy which he as a matter of law did not possess, because he did not own all the unpaid notes. Douglass v. Blount,
We are further of the opinion that the question of the amount due by appellee on the unpaid vendor lien notes, and the right of appellant to a judgment thereon, together with a foreclosure of his vendor's lien, were not litigated in the former suit, and under the terms of the judgment as rendered in the former suit that issue was specifically eliminated therefrom, and said judgment cannot be pleaded as a bar to appellant's right to recover on said notes and to foreclose his lien in this suit. 34 C.J. 797; Groesbeck v. Crow,
We are further of the opinion that appellees cannot urge the former judgment as a defense against appellant's right to recover for the unpaid balance on the vendor lien notes, since the record shows affirmatively that in the former suit they alleged that they were ready, able, and willing and offered to pay any of the unpaid balance on said notes, and successfully contended that it would be inequitable and unjust to permit appellant to recover the land, since they had paid a large portion of the unpaid purchase price, and had made valuable improvements thereon, and were willing to complete the payment. It would be manifestly unjust to permit appellees to defeat appellant's right to cancel the contract by offering to pay, and then, when he attempted to enforce payment, plead in bar that they had successfully defeated his right to cancel the contract on their promise, agreement, and offer to pay.
We think the trial court was in error in instructing a verdict for appellees. The amount due on the notes and whether they provide for the payment of usurious interest are primarily matters of fact to be determined by the jury, and, since same were not submitted to the jury, it would not be proper for us to, and we do not, express any opinion with reference thereto.
*852The judgment of the trial court is reversed, and the cause remanded.