Grizzard v. Fite ( 1916 )

Me. Justice LafsdeN

delivered the opinion of the Court.

This ease is before us upon petition for certiorari to the court of civil appeals. The case presented by the petition is as follows:

The suit was brought by Mollie E. Grizzard against the defendants to recover damages for breach of contract. The defeiMants plead in abatement, in substance, that before the bringing of the present suit the plaintiff herein had filed a bill in the chancery court of Davidson county to cancel and rescind the same contract for fraud. The plaintiff demurred to this plea, the demurrer was overruled, and the suit dismissed; but it was provided in the order of the court that the plaintiff might have ten days therefrom “within which to prepare and file or enter her motion to amend her declaration and to give defendants’ counsel notice thereof and furnish copy of the proposed amendment to such counsel, and, if such notice be not given and copy furnished within that time, this suit will stand abated and dismissed at the cost of plaintiff.” One day after the ten days allowed had elapsed, plaintiff filed her ajnended declaration averring fraud and deceit. Upon motion of defendants, this amended declaration was stricken from the files. Plaintiff then moved to be allowed to file the amended declaration “nunc pro tunc,” which was denied. An appeal was taken to the court of civil appeals, and that court affirmed the action of the trial judge.

The suit to cancel the contract for fraud necessarily affirmed that the contract did not exist at the time the suit was brought, and that, because of the fraud alleged in the bill, it never existed. The suit in the present case for damages for breach of the contract necessarily assumes that the contract does exist, that the defendant has breached it, and that plaintiff has suffered damages thereby. The- difference between the two suits is substantial and not formal merely.

No question has been made but what the two remedies sought by plaintiff are inconsistent, and that she had her election to waive the fraud and stand by the contract, or to insist upon the fraud and. proceed outside of the contract. There has been some doubt, and there is an apparent disagreement in the authorities, as to whether the mere bringing of the suit in the chancery court referred to was an irrevocable election. But when the nature of an election is considered and the doctrine of courts of equity •respecting election of remedies is held in view, we think there can be no reasonable doubt but what the bringing of the suit to cancel the contract for fraud was a judicial estoppel. An “election” is a voluntary act upon the part of the suitor by which he chooses between two or more remedies. In order for the election to be irrevocable, the remedies must be inconsistent, and the suitor must have full knowledge of the facts and of his rights and act free from fraud and imposition upon the part of his adversaries. Shannon’s Code, section 4439; Fowler v. Bank, 113 N. Y., 450, 21 N. E., 172, 4 L. R. A., 145, 10 Am. St. Rep. 479.

Not every election of remedies is irrevocable, because two or more remedies are often given to redress the same wrong, and are therefore concurrent. Machine Co. v. Owings, 140 N. C., 503, 53 S. E., 345, 6 Ann. Cas., 211; Mizell Live Stock Co. v. McCaskill Co. 62 Fla., 239, 56 South., 391, Ann. Cas., 1913D, 1197.

Neither is an election irrevocable in cases in which the wrong remedy is elected, because in such a case the suitor really has no election between two remedies. He may have erroneously thought that he had the first remedy. Zimmerman v. Robinson, etc., Co., 128 Iowa, 72, 102 N. W., 814, 5 Ann. Cas., 960; Fuller v. Harter, 110 Wis., 80, 85 U. W., 698, 53 L. R. A., 603, 84 Am. St. Rep., 867; Montlake Coal Co. v. Chattanooga Company, Ltd., 191 S. W., —, this term. But in cases where two or more inconsistent remedies are given, 'which depend upon inconsistent facts, and' which must result in the suitor assuming a position inconsistent with the position which he must after-wards assume to prosecute the alternative remedy, an election, deliberately made with full knowledge of the facts and without fraud or imposition upon the part of his adversary, works a judicial ■ estoppel whether the adversary has been injured thereby or not. The rationale of the doctrine is that courts will not permit suitors to solemnly affirm that a given state of facts exists from which they are entitled to particular relief, and then afterwards affirm, or assume, that a contrary state of facts exists from which they are entitled to .inconsistent relief.

This court has so adjudged in numerous cases. In Watkins v. Watkins, 7 Yerg., 283, it was held that, by filing a hill for dower and distribution, a widow elected thereby to take the latter, and thus abandoned the provision in a deed of trust for her support and maintenance given by the husband upon a separation agreement. The court said:

“By her suit for dower and distribution, Mrs. Watkins has abandoned all claim to any benefit under the provision made for her use by the covenant of 1825. 1 Eq. Ca. Ab., 218; Cro. E., .128. This she had the right to do after becoming discovert. From the covenant, it is clear she is not entitled to both. This suit is a conclusive election to abandon the articles. ’

In Parham v. Parham et al., 6 Humph., 287, it was held that a suit for dower and distribution by a widow after the death of her husband is an election to abandon the provisions of a marriage settlement made by the husband in his lifetime in lieu' of maintenance, dower, and distribution, and that the bringing of the suit for dower and distribution, was a conclusive and irrevocable election. The court said:

“We are therefore of opinion with the chancellor that the complainant, Sarah Parham, cannot claim under the deed, and against the estate both, but must elect between them, and that, as she has by this her suit elected to take her dower and distributive share of the estate, she must account for the property conveyed in the deed which has not been expended for her support and maintenance during her coverture. ’ ’

In O’Bryan v. Glenn Bros., 91 Tenn., 106., 17 S. W., 1030, 30 Am. St. Rep., 862, it was held that the filing of a bill by the beneficiary in a deed impeaching the deed as fraudulent is such an unequivocable and decisive act on his part as, when done with full knowledge of the facts, works an estoppel upon him.

“The defendants could elect to take under the assignment, or théy might renounce the same and attack the assignment; but a creditor cannot be permitted to assail and claim under an assignment. It has been held by this court, and it is sustained by all the. authorities, that any distinct and unequivocal act of renunciation of the benefits of a deed by any of the creditors intended to be benefited will operate against any further claims under the deed. ... It is further insisted that complainants in this case suffered no loss or injury to their rights or interest by the filing of the attachment bill and the attaching of the assigned property, and therefore they are not estopped to assert their rights under the deed of assignment. Bigelow on Estoppel (5th Ed.), 573, says: ‘The election, if made with knowledge of the facts, is in itself binding; it cannot be withdrawn without due consent, although it may not have been acted upon by another by any change of position,’ Herman, in his work on Estoppel and Res Judicata (1177, edition of 1886), says: ‘One entitled to a benefit under an instrument, whether it be a will or any contract, if he claims the benefits of such instrument, he must abandon every right the assertion whereof would defeat even partially the provisions of the instrument. A party - cannot occupy inconsistent positions, but will be confined to his election. ’ In Louisville & N. B. Turnpike Co. v. Nashville & Ky. Turn-Pike Co., 2 Swan, 282, it is said: ‘In case of election, the rule is, if a person determines his election, it shall be forever determined.’ ”

In Lockett v. Kinzell, 99 Tenn., 713, 42 S. W., 442, the foregoing case was cited with approval upon the point herein discussed.

In Phillips v. Rooker, 134 Tenn., 466, 184 S. W., 14, it was said:

“The doctrine of election differs from that of es-toppel in pais, in that an election in order to effectiveness need not be acted on by the other party by way of a detrimental change of his position, provided the election is a decisive one.”

Our cases are in accord with the current of authority in other jurisdictions. In 9 R. C. L., p. 960, it is stated that an election of remedies in the class of cases under discussion is generally considered made when an action has been commenced on one of the inconsistent remedies. For this position many a-uthorties are cited in the note, but the author of the article referred to considers that the more reasonable rule is in opposition to the clear weight of the adjudicated cuses. For this statement he cites a case from an inferior appellate court. Register v. Carmichael, 169 Ala., 588, 53 South 799, 34 L. R, A. (N. S.), 309; Commission Co. v. M. P. R. Co., 126 Mo., 344, 28 S W., 870, 26 L. R. A., 840, 47 Am. St. Rep., 675; and the notes in 10 Am. St. Rep., 487, and 13 L. R. A., 91.

In 15 Cyc., 259, it is stated that the preponderance of authority establishes that the mere commencement of any proceeding to enforce one remedial right in a court having jurisdiction thereof is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. .

The doctrine is well stated by the supreme court of Wisconsin in Rowell v. Smith, 123 Wis., 510, 102 N. W., 1, 3 Ann. Cas., 773, as follows: .

'‘Such inconsistency is to be looked for in the relation between the parties which the different remedies suggest. If one sues for damages for breach of or to otherwise recover on contract, corresponding-relations are necessarily . . . implied to exist; while if, growing out of the same transaction, that one sues to recover property parted with to (another) on contract, a termination of contract relations by rescission is suggested. In one case, a subsisting contract is assumed or alleged; in the other, absence thereof is-' necessary. ’ ’

The Supreme Judicial Court of Massachusetts in Connihan v. Thompson, 111 Mass., 270, stated the doctrine thus:

“The defense of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance, and the other upon the disaffirmance of a voidable contract, or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal-rights of the parties once for all. The institution of a suit is such a decisive act; and if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon.”

Robb v. Vos, 155 U. S., 43, 15 Sup. Ct., 14, 39 L. Ed., 63, reviews a great number of cases from that court, as well as the highest courts of several of the States, and concludes as follows:

“The rule established by these cases is that' any decisive act by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and that one of the most unequivocal methods of showing ratification of an agent’s act is the bringing of an action based upon such an act.”

See Kinney v. Kiernan, 49 N. Y., 164; Moller v. Tuska, 87 N. Y., 166; Farwell v. Myers, 59 Mich., 179, 26 N. W., 328; Acer v. Hotchkiss, 97 N. Y., 395; and the English cases cited in 10 Am. St. Rep., 487, supra; Sanger v. Wood, 3 Johns. Ch. (N. Y.), 416; Lloyd v. Brewster, 4 Paige (N. Y.), 537, 24 Am. Dec., 88; Bulkley v. Morgan, 46 Conn., 393; O’Donald v. Constant, 82 Ind., 212; Bank v. Commission Co., 198 Ill., 232, 64 N. E., 1097; Theusen v. Bryan, 113 Iowa, 496, 85 N. W., 802; Lowenstein v. Glass, 48 La., 1422, 20 South., 890; Bohanan v. Pope, 42 Me., 93; Thomas v. Watt, 104 Mich., 201, 62 N. W., 345; Conrow v. Little, 115 N. Y., 387, 22 N. E., 346, 5 L. R. A., 693; Ludington v. Patton, 111 Wis., 208, 86 N. W., 571; Clausen v. Head, 110 Wis., 405, 85 N. W., 1028, 87 Am. St. Rep., 933; In re Garver, 176 N. Y., 386, 68 N. E., 667.

Hence we hold that the bringing of the former suit alleging that the contract was procured by fraud is a bar to the present suit and the plea was properly sustained.

As seen from the statement of the case, the trial judge struck from the files the amended declaration. In addition to the reasons stated heretofore, he was manifestly correct in this holding, because the order allowing the amendment prescribed the time in which it should be made and the plaintiff did not comply with this order. It must be remembered that the plaintiff’s case had been dismissed, and she only acquired a status in court subsequently thereto by permission of the trial judge, and upon the conditions prescribed by him.

The application to file the amended declaration “nunc pro tunc” was a misconception. A “nunc pro tunc order” can only be made when the thing ordered has previously -been allowed,'-but by inadvertence has not been entered. It applies only to orders of court, and never to action of counsel.

The petition is denied.