Lester v. Percy ( 1961 )

Foster, J.

(concurring) — While I have signed the court’s opinion, there are additional reasons which to me are extremely persuasive for reversing the judgment. The dismissal of the action by the trial court affords additional proof of the truth of the comment of the great English scholar, Sir Frederick Maitland, that “The forms of action we have buried, but they still rule us from their graves.”

The prayer of the complaint was for the rescission of a contract of sale and the recovery of the purchase price. The respondents admit the breach of a warranty of fitness. The first territorial legislature of 1854 abolished the distinction between law and equity and provided that there should be but one form of civil action.¹ Judgments must be founded upon facts and not upon formalistic pleading defects. Builders Corp. of America v. United States, 259 F. (2d) 766. This is emphasized by the modern rules of civil procedure.² Appellants’ action should not fail because of the prayer for rescission rather than for breach of warranty for fitness. It is idle to speculate whether in those jurisdictions where law and equity are still separate this would be a suit in equity. Williston declares that, although the remedy of rescission was originally equitable, relief can now be obtained in an action at law. 3 Williston on Sales (Rev. ed.) 484, § 647. Even in those jurisdictions where law and equity are separately administered, if the plaintiff mistakenly seeks an equitable remedy and fails in some aspects of his proof, the action is simply transferred to the law side. Birmingham Sawmill Co. v. Southern R. Co., 210 Ala. 126, 97 So. 78; McGraw Co. v. Zonta Tire & Rubber Co., 194 Iowa 685, 190 N. W. 129; Koontz v. Bay Circuit Judge, 224 Mich. 463, 194 N. W. 1018.

This court has long recognized that cases are to be decided upon the merits, and that suits for what were originally equitable remedies will not be dismissed but that judgment will be granted according to the proofs. Williams v. Snow, 109 Wash. 329, 186 Pac. 861, decided that, in an equitable proceeding for partnership accounting in which the proofs failed to show the existence of a partnership, a money judgment for the plaintiff would, nevertheless, be affirmed. The court said:

“Appellant’s main contention here is that the court erred in rendering judgment in effect for damages instead of dismissing the action when it was found that there was no partnership assets to be divided. While it appears that respondent knew before he brought the action that Smithson claimed some interest in the sheep referred to, yet it is not claimed nor intimated that he acted in bad faith in framing his complaint upon the theory which he did, and there is nothing to warrant us in so finding. Assuming, then, that the theory of the complaint was adopted in good faith, did the court err? We think not. In Browder v. Phinney, 30 Wash. 74, 70 Pac. 264, it was held by this court that the superior court is a court of general jurisdiction, with power to hear and determine both legal and equitable issues, and that when the court is advised as to the facts in a case of which it has jurisdiction, it should apply the proper remedy, be it legal or equitable, since a party is not to be turned out of court if entitled to any relief under the pleaded facts. This rule has been followed in many cases, among which are: Brown v. Baldwin, 46 Wash. 106, 89 Pac. 483; Maitland v. Purdy, 49 Wash. 575, 96 Pac. 154; Pacific Iron & Steel Works v. Goerig, 55 Wash. 149, 104 Pac. 151; Dolan v. Cain, 59 Wash. 259, 109 Pac. 1009; Hewett v. Dole, 69 Wash. 163, 124 Pac. 374; Coliseum Investment Co. v. King County, 72 Wash. 687, 131 Pac. 245, and Salt v. Anderson, 107 Wash. 149, 180 Pac. 873.”

Contrast this with the formalistic decision of the New York Court of Appeals in Jackson v. Strong, 222 N. Y. 149, 118 N. E. 512. There the complaint pleaded a suit of equitable cognizance but the plaintiff’s proofs failed in one particular. A money judgment for the plaintiff was reversed.

Fortunately, the law in Washington is much more enlightened. This court has never entertained the hostility of the New York courts to the fusion of law and equity. Judgments must rest upon the merits of the controversy and not upon the technicalities of pleading. The court correctly affords the appellants an opportunity to complete their proofs to support a judgment to recover their damage for breach of the warranty of fitness.

1 Fraser, One Form of Action: Pleading Alternative Facts, Theories and Remedies, 14 Okla. L. Rev. 125.

2 “. . . Under the new practice, the expression ‘cause of action’ with all the theories connected therewith as developed under the former code, has been supplanted by the word ‘claim.’ We are no longer concerned with meeting technical requirements of theories of causes of actions. In construing the rules of civil procedure applicable to this cause we endeavor to ascertain the spirit and intent of the rules as reflected by the language employed. Prior to the adoption of the said rules it frequently happened that a litigant failed to secure the redress of a wrong for the reason that he misapprehended the theory of his technical ‘cause of action,’ and found himself out of court without any determination of the facts upon which he relied. We are fully convinced that the rules of civil procedure were intended to de-emphasize the theory of a ‘cause of action,’ and to place the emphasis upon the facts giving rise to the asserted claim. If sufficient notice concerning the transaction involved is afforded the adverse party, the theory of the pleader is not important. If, under the facts, the substantive law provided relief upon any ‘theory,’ the cause should proceed to judgment. This construction seems to be in harmony with the views expressed by members of the rules Revision Committee of the Colorado Bar Association concerning the purposes and intent of the rules of civil procedure, as will appear from the statement thereof in Appendix D, vol. 1, ’35 C. S. A., Rules of Civil Procedure.” Bridges v. Ingram, 122 Colo. 501, 506, 223 P. (2d) 1051.