234 Ky. 707
Court of Appeals of Kentucky.
June 10, 1930.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by J. H. Riley and others against the Cumberland & Manchester Railroad Company.
Judgment for defendant, and plaintiffs appeal.

Appellants were partners in the timber business. They purchased a boundary of timber and entered into a contract with appellee to construct a side track to enable them to market their timber. For some reason or another appellee failed to construct the track in accordance with its agreement after appellants had fully complied with their part of the contract. They instituted a suit in the Clay circuit court asking for a specific performance of the contract which was granted, and appellee immediately proceeded with the completion of its part of the contract. It appears that the first contract made in April or May, 1920, was not reduced to writing, but, after the chancellor had directed appellee to perform the contract, there was a written agreement in regard to the matter. This written agreement was made on the 20th day of July, 1920. That contract covers the same subject-matter as did the verbal contract, but we deem that matter immaterial in view of the conclusions which we have reached.

On the 28th day of April, 1925, suit was instituted to recover damages from appellee on the ground that the delay occasioned by its refusal to complete its contract resulted in the inability of appellants to ship certain timber products until the market had gone off which caused them to lose more than $10,000. The issues were made up, and, at the conclusion of the evidence introduced to enable the court to determine whether the contract sued on was the same contract involved in the suit for specific performance, the court found it to be a suit on the same contract and instructed the jury to return a verdict in favor of appellee.

Counsel for appellants devote their argument to but one question, and that is whether the doctrine of res judicata can be made to apply. It is their contention that the first suit for a specific performance is not a bar to the second suit for damages. Counsel for appellee devote their entire argument to the question of the right of a party to institute a suit to recover damages for the breach of a contract after having elected to pursue his remedy for a specific performance and having obtained the relief sought.

Counsel for appellants thus state the question before us: "Does an equitable action which sought to compel a railroad company to install a side track in order that timber taken from his boundary of land may be changed from that side track to the markets, bar a subsequent action at law which is brought to recover damages which result in the loss sustained by the dropping-lumber- markets before that timber could, after the switch was installed, be gotten to the market?"

On the other hand, counsel for appellee thus state the question before us: "It is the contention of appellee that appellants, Riley and Cole, by filing the suit in the Clay Circuit Court seeking a specific performance of the alleged contract, made an election between the remedies that they might obtain for the breach of the contract, which barred their right to assert any subsequent claim for damages."

From the respective contentions we deduce that the question for decision is whether a party may seek and obtain specific performance of a contract and thereafter institute action to recover damages occasioned by the delay in compelling specific performance.

Neither brief cites any Kentucky case directly in point. In response to the brief filed in behalf of appellee, counsel for appellants treat their contention as one deserving no consideration or courtesy, but they fail to cite any case justifying the position taken. It is suggested by them that counsel for appellee undertake to apply trite undisputed principles of law to facts for which they are not intended. It is conceded by counsel for appellants that if they stood at the threshold, and there had two roads, and chose the one that a court would not permit them, after following that course, to come back and take up the other one. By a further process of reduction, and in determining what the contention really is between the parties, we find that the case reduces itself to whether appellants, when they stood at the threshold, had two roads, either of which they might follow, as they, by their own counsel, concede if that is true that they cannot now go back and follow the other road after having pursued one to the end. The election of remedies is the act of choosing between different inconsistent, coexisting remedies. It is the choice by a party to an action of one of two or more coexisting remedial rights, where several such rights arise out of the same facts. But generally the doctrine applies to a choice by a party between inconsistent remedial rights, the assertion of one being necessarily a repudiation of the other. The doctrine is based upon the rule that a party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. As has been said in some cases, a man shall not be allowed to approbate and reprobate.

The statement was there made that the doctrine of election of remedies applies to cases only where the plaintiff has a choice of remedies arising out of the same state of facts; a familiar example of which, so said that court, is a breach of contract to perform some specific undertaking where the party injured may choose between the remedy of damages and the remedy of specific performance.

That opinion appears to be in harmony with the weight of authority in other jurisdictions, as the rule in other jurisdictions is gathered from the text- writers and the opinions which we have examined. Such a rule is but the application of the old adage that a man cannot both have his cake and eat it. Appellants had a contract with appellee whereby appellee had agreed to do certain specific things and it had refused to carry out its contract. They had two coextensive remedies, the one inconsistent with the other. They could have their contract executed by a suit for specific performance, or they could have damages in an action at law for its breach. They chose to have their contract with appellee executed, and that was an irrevocable election of remedies. It may be that damage resulted to appellants by reason of the failure of appellee to execute its contract, but they sought no damages at the time which had accrued up to the judgment directing an execution of the contract by appellee. It may be said that such damages as accrued, if any, were hazards of the business and appellants took their chance. If the price of lumber had gone up instead of going down they would have benefited by reason of the delay in the execution of the contract. They took their chance and made their election, and they cannot go back to the forks of the road and travel the road which they abandoned after having followed the other to the end.

Judgment affirmed.

Ky.App. 1930.
29 S.W.2d 3, 234 Ky. 707


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