Reid v. Anderson , 116 Utah 455 ( 1949 )

I concur in the holding that demurrers should be applicable in actions brought under our declaratory judgment statutes. I also concur in the holding that we should affirm the trial court, but not for the reasons given in the majority opinion. A good argument could be made to show that the plaintiffs have not waived their right to have us pass on the merits of the general demurrer. However, that question involves matters of procedure and in view of our new rules which will be effective in the near future no good purpose could be accomplished by a discussion of my reasons.

I would affirm the ruling of the trial court because I do not believe plaintiffs have alleged a cause of action entitling them to declaratory relief. Factually, we are presented with an alleged agreement for the sale of certain real property signed by a husband as seller and not by his wife. The purchasers were not able to get the sellers to execute a deed to the property so they instituted an action against the husband and wife and the real estate agents seeking to have the court declare their rights to any of the following remedies: (1) Specific performance of the contract against both sellers, (2) specific performance against the husband subject to the wife's inchoate right with abatement of a portion of the purchase price, (3) damages against all defendants and (4) if damages are allowable what items are assessable.

If plaintiffs have a contract which was breached they have a common law cause of action which has already matured and the customary legal proceedings are open and available to them. The forums provided are ample and adequate and the procedure is not complicated. I believe the processes now available should generally be adopted. That is to say, where a cause of action has already accrued that is justifiable in a well recognized form of action, declaratory relief should not ordinarily be considered.

A good rule is announced by Anderson in his text on Declaratory Judgments. I quote from par. 44, 1946, Cumulative Pocket Edition:

"Right of Damage Action Not Declared, When

"It was not the legislature's intent, that a declaratory action should take the place of the traditional action for damages for a breach of contract where information is lacking, to plaintiff, since the very name `declaratory judgment' and the subject of its rights, status, and other legal relations, signifies rather that an uncertainty in the contract and its effect is to be removed and the proceeding should not be used for the determination of the effect of past occurrences in the performance of the contract. In other words the declaratory action cannot, under the guise of construing a contract, determine a party's right to damages for a breach."

If the plaintiffs in this case can secure from the court a declaration of their rights, remedies and items of damage, it is hard to conceive of any party who, having a cause of action of any nature against another party, might not in seeking a declaratory judgment ask the court to define his rights and to advise him on his future procedure. To permit litigants to obtain such declarations would create a situation where we would have parallel remedies in every civil suit. Instead of a party obtaining a declaration of his rights he would either determine and try every issue involved or obtain a friendly opinion upon an abstract question, to be used as the basis for a subsequent suit. Plaintiffs' cause of action, if any, has already accrued and the facts alleged in the petition establish substantially the same issues that would be involved had plaintiffs pleaded an ordinary breach of contract action. The only question of importance in this case is the ultimate liability of the husband or wife for the alleged failure to convey. In the case of Porcelain Enamel Mfg. Co. of Baltimore v. Jeffrey Mfg. Co., 177 Md. 677,11 A.2d 451, at page 453, the Court of Appeals of Maryland disposed of a somewhat similar suit by holding that a declaratory judgment suit should not take the place of the ordinary civil action. I quote from that decision:

"The statute is, of course, to be given its full effect, and to be made to work as intended, without obstruction by adherence to previously established procedure if it might conflict. But at the same time, the construction of it is to be found in the meaning its provisions would have to the Legislature enacting it.Duncan v. Graham, 155 Md. 507, 510, 142 A. 593. The function of the court is to give effect to the legislative enactment, and the enactment is that which the Legislature must be supposed to have intended. It is not necessary, and would perhaps be undesirable, that a formula for service in all cases be adopted now, and the decision will be confined to the particular case. So confining it, the decision is that the Legislature cannot be supposed to have meant that resort to a declaratory judgment should take the place of an ordinary action for damages for breach of contract because information is lacking to the plaintiff. The name `declaratory judgment', and the subject of it, `rights, status and other legal relations,' would, in our opinion, signify rather that uncertainty in the contract and its effect are to be removed."

In the final analysis, plaintiffs seek to have the court render an advisory opinion on their rights under an accrued cause of action and to assist them in determining the proper remedy to be pursued. The trial court rightly concluded plaintiffs had not alleged facts sufficient to entitle them to relief.

With this conclusion I agree.