Citations
- 64 Fla. 206
Full opinion text
Shackleford, J.
(After stating the facts). — The only question we are called upon to answer on this appeal is, did the trial judge err in' overruling the demurrer to the bill? In answering this question, we shall discuss only such points as seem to us to be necessáry for a proper disposition of the case.
It is strenuously urged by the,appellant, that the appellee is precluded from maintaining this suit for the reason that, as is shown by the allegations in the bill, he brought an action at law against the appellant and recovered judgment upon the contract which he seeks by this suit to have reformed and to obtain relief by recovering such amount thereon to which he may establish by evidence that he is entitled., In other words, the doctrine of .election of remedies is invoked, and the following authorities are .cited in support of this contention: Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435; Washburn v. Great Western Insurance Co., 114 Mass. 175; Thomas v. Joslin, 36 Minn. 1; Lansing v. Commercial Union Assurance Co., 4 Neb. (Unof.) 140, 93. N. W. Rep. 756; 15 Cyc. 259. We shall not undertake a critical analysis of these cited authorities. We have no especial fault to find with their statement of the general doctrine concerning the election of remedies. In Campbell v. Kauffman Milling Co., supra, we adopted the following rule from Bigelow on Estoppel: “A party cannot, either in the course of litiga lion or in dealings in pias. occupy inconsistent positions. Upon that rule election is founded. A man shall not be allowed to approbate and reprobate. And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge .of the facts, is in itself binding. It cannot be withdrawn without due consent. It cannot be withdrawn, though it has not been acted upon by another by any change of position.” This rule has been recognized, approved and followed in several subsequent opinions. See Ocala Foundry & Machine Works v. Lester, 49 Fla. 347, 38 South. Rep. 56; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. Rep. 942, 16 Ann. Cas. 1054; Hays v. Weeks, 57 Fla. 73, 48 South. Rep. 997; Malsby v. Gamble, 63 Fla. 508, 57 South. Rep. 687. The difficulty is not with the rule, but with its application to the facts as they are presented in a particular case. As we held in American Process Co. v. Florida White Pressed Brick Co., supra. “Whether co-existent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.” We held in Hays v. Weeks, supra, that, “If in fact or in law only one remedy exists, and a mistaken remedy is pursued, the proper remedy is not thereby waived. More than one remedy must actually exist,” and further held in Malsby v. Gamble, supra, that “The doctrine of election of remedies does not apply to a case where a party in his first, action mistook his remedy.” As is laid down in 16 Cyc. 259, “The prosecution of one remedial right to judgment or decree, whether the judgment or decree is for or against the plaintiff, is a decisive act which constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights.” If the judgment rendered in favor of the plaintiff, who is the appellee here, in the action at law brought by him against the appellee still remained in full force and effect, undoubtedly the doctrine of election of remedies as enunciated in the cited authorities would apply and be decisive of the point. Unfortunately, for the contention of the appellant, it appears from