154 S.W. 264 | Tex. App. | 1913
Whitney is a resident of the county of Jefferson, in this state, and, as before shown, the suit from which this appeal is prosecuted was brought by said parish in the district court of said county to recover the amount due upon the judgment above described. The defendant, Whitney, answered by general demurrer and general denial, and by plea in reconvention sought to recover on a quantum meruit the reasonable value of the material and labor furnished by him to the plaintiff, and which plaintiff received and appropriated to its use and benefit in the construction of its courthouse. The reasonable value of the material and labor so furnished by defendant to plaintiff is alleged to be the sum of $12,692.16, and the itemized statement of said material and labor is identical with the statement contained in the petition filed by the plaintiff, Whitney, in the suit brought by him in the Louisiana court before mentioned. In reply to this plea in reconvention, the plaintiff below filed pleas of res adjudicata and election of remedies. The trial in the court below, without a jury, resulted in a judgment in favor of the plaintiff.
There is no conflict in the evidence, and, in addition to the facts before stated, it appears from the evidence that in the suit brought by Whitney in the Louisiana court there were no allegations in his petition which would sustain a recovery on a quantum meruit for the work and material furnished by him in the construction of the courthouse for the defendant parish. No evidence was offered in said suit as to the reasonable value of said work and material, and the opinion filed by the district judge in that case shows that the question of plaintiff's right to recover upon a quantum meruit was not in the case. The record of the trial of the case shows that the defendant parish objected to "any evidence being offered to show quantum meruit," and thereupon counsel for plaintiff, Whitney, expressly disclaimed any right to recover under his pleadings upon a quantum meruit, and the trial judge ruled that no evidence could be offered upon that issue. No part of the judgment for *266 $4,644 rendered in said cause against Whitney has been satisfied, and it is a valid and subsisting judgment. The trial judge found that the value of the labor performed and the material furnished by Whitney, "which was accepted by the parish of Vernon, and which I find was used by the said parish of Vernon in constructing and building the courthouse, after the said Whitney had been prevented from further proceeding with his contract with the said Parish of Vernon," was $10,994.79.
Under appropriate assignments of error appellant, or plaintiff in error, complains of the judgment of the court below, upon the ground that, upon the facts shown by the undisputed evidence, neither the plea of res adjudicata nor the plea of election of remedies was available as a defense to his plea in reconvention. We think these assignments should be sustained. It is clear from the evidence that appellant's right to recover upon a quantum meruit was not and could not, under the pleadings, have been adjudicated in the former suit. This being so, it follows that the judgment in the former suit does not support the plea of res adjudicata.
The petition of plaintiff in the former suit declared upon an express contract, and there is no rule of decision more firmly fixed than that upon a petition of this kind proof of an implied contract is not admissible. In the case of McGreal v. Wilson,
In Nunn v. Townes, 23 S.W. 1117, the Court of Appeals for the Fourth district says: "Appellees declared upon an express contract, and there is no plainer rule of law than that they must be held to their allegations; and proof of an implied contract will not sustain the allegations. Shiner v. Abbey,
The question of appellant's right to recover upon a quantum meruit not being within the scope of the pleadings in the former suit, the judgment in that suit is not a bar to his assertion of that right in the present suit; and it is immaterial that the former suit involved the same items of labor and material for which recovery is sought in this suit. The identity of the thing sued for is the same, but the identity of the issue involved in the two actions is different. Moore v. Snowball,
Mr. Freeman, in his work on Judgments, says: "The best and most invariable test as to whether a former judgment is a bar is to inquire whether the same evidence will sustain both the present and the former action. If this identity of evidence is found, it will make no difference that the form of the two actions is not the same; whatever be the form of the action, the issue is deemed the same whenever it may, in both actions, be supported by substantially the same evidence. If so supported, a judgment in one action is conclusive upon the same issue in any other suit, though the cause of action is different. On the other hand, if different proofs are required to sustain the two actions, a judgment in one of them is no bar to the other. If the evidence in a second suit between the same parties is sufficient to entitle plaintiff to a recovery, his right cannot be defeated by showing any judgment against him in any action where the evidence in the present suit could not, if offered, have altered the result."
In the case of Bank v. Barrett, 25 S.W. 456, it was held that a judgment for defendant in a suit to recover upon a contract for services rendered is not a bar to a second suit by the plaintiff to recover on a quantum meruit for the same services.
The authorities above cited are, we think, *267 conclusive against the holding of the trial court upon the plea of res adjudicata.
We think it equally clear that the plea of election should not have been sustained. The doctrine of election of remedies applies in a case in which a plaintiff has the right to choose between two modes of redress which are so inconsistent that the assertion of one is necessarily a repudiation of the other. When, in such case, the litigant, with knowledge of facts that would authorize a resort to either of two remedies, elects to pursue one and sails to secure redress he will not be thereafter permitted to pursue the other. He cannot assume contradictory positions. The case of Robb v. Vos.
Another case illustrative of the doctrine is Thompson v. Howard,
The doctrine also applies in cases in which a party having two or more cumulative remedies, which he may pursue together and enforce at the same time, elects only one. In such case he will not be permitted to divide up his claim or split his causes of action and bring a second suit, when, by choosing in the first instance to pursue only one of his remedies, he may have put the defendant in a position to suffer loss which otherwise he would have avoided. The case of Ward v. Green,
It is manifest that the instant case does not call for the application of the doctrine of election of remedies. There is no inconsistency in the position assumed by appellant in seeking to recover upon a quantum meruit and in that assumed by him in his suit upon the contract. The pursuit of one of these remedies cannot be regarded as a repudiation of the other. The fact that appellant in the suit in Louisiana mistakenly supposed that he had a valid contract and attempted to recover thereon should not, when the court determined that the contract was invalid, bar him from pursuing a remedy for relief to which he is, in equity and good conscience, entitled. The proposition that when, in a suit on an express contract, the judgment goes for the defendant such judgment is not a bar to a second suit by the plaintiff to recover the reasonable value of the same services involved in the first suit is fully sustained by the authorities. The opinion in the case of Water, Light Gas Co. v. City of Hutchinson, 160 F. 41, 90 C.C.A. 547, 19 L.R.A. (N.S.) 219, ably discusses the question of res adjudicata and election, and cites many authorities in support of the views above expressed. We think the facts of this case easily distinguish it from the case of Ward v. Green, supra.
The brief of appellee, or defendant in error, contains the following cross-assignment of error: "The court below erred in his seventh paragraph of his findings of facts and conclusions of law. The lower court found that, if the plaintiff in error were not barred by the pleas of res adjudicata and election of remedies, he would be entitled to recover on his cross-plea $10,994.79 as against the defendant in error."
This assignment is followed by extracts from the testimony of several witnesses for appellant and of appellant himself, which tends to show that the amount of labor and material furnished by appellant and appropriated by the defendant in error was indefinite. It does not appear that any assignments were filed in the court below by the defendant in error. Neither the assignment nor the statement is in sufficient compliance with the rules to require our consideration; and if we should consider it the facts disclosed by the statement would not justify this court in holding that the finding of the trial court, that the value of the appellant's work and material accepted and used by the defendant in error in the construction of courthouse was $10,994.79, was not supported by the evidence.
It follows from the conclusions above expressed that the judgment of the court below should be reversed and judgment here rendered in favor of appellant, Whitney, for the sum of $10,994.79, less the amount due by him on the judgment against him in favor of the defendant in error; and it has been so ordered.
*268Reversed and rendered.