Findlay & Hay v. Keim , 1869 Pa. LEXIS 222 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

There is but one question in this case. Jacob Keim sold his farm to the plaintiffs and then refused to comply with his contract. The plaintiffs tendered the money due and a mortgage for the remainder, and brought an action of covenant on the articles. The action was arbitrated, and for some reason not apparent, an award was given against the plaintiffs, who appealed. They then brought this ejectment to enforce ¡specific performance of the contract. After the institution of the ejectment the plaintiffs discontinued the action of covenant without leave of the court. On the trial of the ejectment, without a previous motion to stay proceedings or compel an election, the court held that the actions of covenant and ejectment were inconsistent remedies, that by bringing covenant the plaintiffs had made their election and were barred from a recovery in the ejectment. This was an error. The action of covenant is founded on the agreement and is in affirmance of it. In the action of covenant, under our Pennsylvania practice, originating in the want of a court of chancery, the plaintiffs had a right to proceed to enforce specific performance, by asking for a verdict for the value of the land or such other sum as would compel execution of the covenant of the vendor, to be released on the tender and filing of a sufficient deed, according to -the terms of the contract. Or if he chose he might ask damages only for the non-performance. This is the settled practice in this state, and this mode of equitable proceeding extends not only to covenant, hut to debt, assumpsit and ejectment: Decamp v. Feay, 5 S. & R. 323; Irvine v. Bull, 7 Watts 323; Coolbaugh v. Peirce, 8 S. & R. 418; Huber v. Burke, 11 S. & R. 244, 245; Moyer v. Germantown R. R. Co., 3 W. & S. 92; Smethurst v. Woolston, 5 W. & S. 106; Haverstick v. Erie Gas Co., 5 Casey 254. The error of the learned judge was in supposing that ejectment is the only common-law action which can be used 'to enforce specific performance. The declaration in the action of covenant sets forth the agreement, alleges breaches of it, the chief of which is the failure to convey according to the covenant in the article, and lays the damage at $15,000, a sum amply sufficient,'and indicative of the intent, to compel specific performance. It is clear the action of covenant was not in disaffirmance of the contract, and it is on that ground only it could be held to be absolutely inconsistent with specific performance. Potts’ Appeal, 5 Barr 502, relied on in the court below, is different from, this case. There the vendee was dead, leaving personal estate wholly insufficient to pay his debts and even a small portion of the purchase-money. The vendor having brought his ejectment on his legal title, then went into the Orphans’ Court and demanded a dividend of the personalty. The effect would have been that his claim would have stripped the other creditors of their proper share, his purchase-money being $6455 and.the personal fund only $640, they having no other security for their debts, while he, after receiving his dividend, would have resorted to the land on his title and forfeited the contract, the personal estate being exhausted already. He was therefore claiming in inconsistent rights; the personalty on his contract, and the land by rescission.

The original practice in chancery is evidence that the action on the contract is not antagonistical to the bill for specific performance ; the party being first sent into a court of law to establish his right to recover on his contract. This is now changed: 2 Story’s Equity, § 738. Now in modern practice chancery will generally compel a party seeking specific performance to elect between his action at law and his suit in equity: 2 Daniel’s Chancery Practice, § 4, cases of election. It is here the learned judge erred: he mistook a rule of legal discretion for a hard' rule of law. There being no plea in abatement in ejectment, the plea of not guilty being the only plea under the statute, it was the duty of the defendant to have applied to the court to stay proceedings or compel the plaintiffs to elect under which action they would proceed, and to discontinue, if necessary, and pay the costs of the one they abandoned. But the pendency of the action of covenant could be used only in abatement, and it was too late after going into a trial on the merits, for the defendant to use it in bar of the plaintiff’s right to recover. Had there been a final recovery in the action of covenant, the case would have been different, it then being a bar to a future action. “ The circumstance of a party having elected one of several remedies by action will not in general preclude him from abandoning such suit, and after having duly discontinued it, he may adopt any other remedy 1 Chitty’s Pl. 214; 2 Troubat & Haly’s Practice, by Fish, p. 87, § 3. And he may discontinue after a plea in abatement, and reply that there is no such suit pending. This was expressly decided after full argument in Toland v. Tichenor, 3 Rawle 322. The fact that the Arbitration Law denies a nonsuit, unless by leave of court, after an award against the plaintiff, does not change the case. That would be a material consideration for the court in exercising their discretion on a motion to stay proceedings and to compel the plaintiffs to elect their action. It does not appear that Jacob Keim had any set-off, or defence which might have suffered by a nonsuit in the action of covenant. Besides, it was in the power of the court, on the motion to compel an election, to permit the plaintiff to strike out of the declaration all the breaches of the article inconsistent with the proceeding in the ejectment to compel specific performance, and to retain only the breach for the non-payment of the grain rent, for which the action of covenant could be rightly used. We think the court erred, therefore, in holding that the bringing of an action of covenant is an absolute bar to specific performance, and such an election of remedies as precludes the plaintiffs ever after from maintaining ejectment to compel performance.

Judgment reversed, and a venire facias de novo awarded.