H. WEEKE, APPELLANT,
v.
W. S. REEVE, APPELLEE
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Weeke sued to rescind a land conveyance based on fraudulent misrepresentations by Reeve, but the lower court dismissed because Weeke had previously brought a separate damages action against Reeve for the same fraud, which resulted in a final judgment for Reeve. The Florida Supreme Court affirmed, holding that election of one remedy bars pursuit of the other inconsistent remedy.
The court held that where a party elects to pursue one of two inconsistent remedies, he cannot afterwards pursue the other, even if he fails in the remedy elected. Specifically, in rescission suits the vendee repudiates the conveyance, while in damages actions the conveyance is ratified—these are inconsistent positions. By bringing the prior damages action, Weeke ratified the purchase and thereby barred himself from later seeking rescission.
“Where a party elects to adopt one of two inconsistent remedies, he cannot afterwards pursue the other, even though he fails in the remedy elected and used.”
Establishes the core principle that election of remedy doctrine bars pursuit of inconsistent remedies.
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Join FLexlaw to unlock all legal intelligenceOn April 6, 1911, Weeke brought suit in Escambia County Court of Record seeking rescission of a land conveyance due to fraudulent misrepresentations b…
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Whitfiwd, J.
J.-—On April 6, 1911, the appellant brought suit in the Court of Record for Escambia County seeking a rescission of a conveyance of land on the ground of fraudulent misrepresentations. A demurrer to the hill of complaint was sustained and amendments to the hill were made. To the amended hill the defendant Reeve pleaded that prior to the filing of the bill of complaint, the complainant herein brought an action against the defendant to recover damages for fraudulent misrepresentations in the sale and conveyance of the land, and that such action had resulted in a final judgment for' the defendant' Reeve. This plea was sustained by the court. By way of replication to the plea the plaintiff alleged that the common law action for damages was not authorized by him or instituted with his knowledge or consent. Testimony was taken and the court finding that the evidence sustained the plea and did not sustain the replication, dismissed the hill of complaint. A rehearing was denied and the complainant appealed.
Where a party elects to adopt one of two inconsistent remedies, he cannot afterwards pursue the other, even though he fails in the remedy elected and used. Where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of litigation, the party cannot afterwards pursue an other remedy by which he assumes a different and inconsistent status or relation to the subject-matter. If a party is injured by the purchase of land because of the fraudulent misrepresentations of the vendor, the vendee may be redressed by a rescission of the conveyance in equity or by the recovery of damages in an action at law. These remedies are co-existent and inconsistent, and the election of one is a bar to the use of the other. See Scott v. Walton, 32 Ore. 460, 52 Pac. Rep. 180. In a suit to rescind the conveyance the vendee repudiates the transfer, while in an action for damages the conveyance is ratified. See Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. Rep. 942; McKinnon v. Johnson, 59 Fla. 332, 52 South. Rep. 288; Capital City Bank v. Hilson, 64 Fla. 206, 60 South. Rep. 189.
The plaintiff having ratified the purchase of the land by bringing an action for damages, he cannot now repudiate the purchase and have rescission. Smith v. Gray, 52 Wash. 255; 100 Pac. Rep. 339; Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. Rep. 4.
Even if the amended bill of complaint contains allegations not covered by the declaration in the action at law for damages, the plaintiff knew of the facts when he brought Ms action for damages, and such knowledge operates as an estoppel m pads. See Prall v. Prall, 58 Fla. 496, 50 South. Rep. 867. The replication to the plea raises the single issue that the action at law was brought without the plaintiff’s knowledge or authority. The finding for the defendant on this issue made a dismissal of the bill of complaint proper. See 18 Ency. Pl. & Pr. 685.
The evidence amply justifies the finding of the court .That the plea was sustained and the replication was not sustained by the proofs.
The decree is affirmed.
Shackleford, G. J., and Taylor, Cockrell and Hocicer, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Warren v. Warren, 73 Fla. 764 (Fla. 1917)…he status of the parties as husband and wife and jurisdiction of the court in so far as it depends upon his domicile or permanent or legal resi [*783] dence. See Graham v. Florida Land & Mortgage Co., 33 Fla. 356, 14 South. Rep. 796; Weeks v. Reeve, 65 Fla. 374, 61 South. Rep. 749; Saunders v. Richard, 35 Fla. 28, 16 South. Rep. 679; Capital City Bank v. Hilson, 64 Fla. 206, 60 South. Rep. 189; Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435. Now in the Miller case, supra, a distinction…
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Klondike, Inc. v. Blair, 211 So. 2d 41 (Fla. 4th DCA 1968)…ther, as where both remedies recognize the existence and validity of a contract and proceed in affirmance thereof, or are predicated on a breach of the contract and seek redress for such breach, * * *” The case of Weeke v. Reeve, 1913, 65 Fla. 374, 61 So. 749, is a classic example of an election of remedies. There plaintiff sought to rescind a contract based upon fraud. The court held the plaintiff was barred from bringing the suit since he had previously brought a suit, though unsuccessfully, for damage…
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Emory Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792 (Fla. 1931)…f words that the plaintiff “take nothing by his suit, and that the defendant go hence without day” or words of like legal import. See Pensacola B. & T. Co. v. N. B. of St. Petersburg, 58 Fla. 340, 50 So. 414; Milteer v. S. A. L. Ry Co., 65 Fla. 357, 61 So. 749; Young v. Lassiter et al., 87 Fla. 445, 100 So. 362; Flynn-Harris-Bullard Co. v. Hampton et al., 70 Fla. 231, 70 So. 385; Mitchell v. St. Petersburg & Gulf R. Co., 56 Fla. 497, 47 So. 794. Dismissed. Terrell and Davis, J.J., concur. Buford, C.J.,…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Prall v. Prall, 58 Fla. 496 (Fla. 1909)
- Robb v. VOS, 155 U.S. 13 (U.S. 1894)
- Am. Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116 (Fla. 1908)
- Cap. City Bank v. Hilson, 64 Fla. 206 (Fla. 1912)
- Talbert v. United States, 155 U.S. 45 (U.S. 1894)
- Campbell v. The Kauffman Milling Co., 42 Fla. 328 (Fla. 1900)
- McKinnon v. Johnson, 59 Fla. 332 (Fla. 1910)