Capital City Bank v. Hilson

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 It cannot be withdrawn without due consent. It cannot — 220 — be withdrawn, though it has not been acted upon by another by any change of position.”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 — 221 — <he allegations of the bill that the defendant in the action at law brought such judgment so rendered against it to this court for review by writ of error, and a decision was rendered by this court whereby such judgment was reversed, by reason whereof the judgment so rendered by the Circuit Court no longer exists. As was held in Hillerich v. Franklin Insurance Co., 23 Ky. L. Rep. 631, 63 R. W. Rep. 592, “The reversal of a judgment in favor of plaintiff upon a policy of fire insurance on the ground that the policy as written did not embrace the property destroyed, leaves the case as if there had been no judgment, and plaintiff may then amend his petition, and seek a reformation of the policy on the ground of mistake, so as to make it include the destroyed property, as the mere assertion of a claim on the policy as written on the ground that it already embraced the property was not a conclusive election of remedy so as to preclude plaintiff from seeking relief on the ground of mistake.” This will be found to be quite an instructive case and well in point. AYe would call attention to the fact that the demurrer interposed in the instant case is to the whole bill, and, therefore, operates as an admission that all such matters of fact as are well and sufficiently pleaded in the bill are true, though allegations of mere conclusions of law are not admitted by the demurrer, for the law is to be ascertained by the court. See Brown v. Avery, 63 Fla. 355, 58 South. Rep. 34; Lindsley v. Mclver, 51 Fla. 463; 40 South. Rep. 619; McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35, 14 Ann. Cas. 365; H. W. Metcalf Co. v. Orange County, 56 Fla. 829, 47 South. Rep. 363. AYe do not copy here the allegations of the bill upon this point for the reason that we have copied the bill in full in the statement which precedes this opinion. In addition to the direct and positive allegations in the bill, this court — 222 — will take judicial notice of its own records, so far as they appertain to the case before it for consideration, but will not take judicial notice in deciding one case of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration, McNish v. State, 47 Fla. 69, 36 South. Rep. 176. As we have further held, an appellate court will take judicial notice of its own opinions. McKinnon v. Johnson, 57 Fla. 120, 48 South. Rep. 910. In the instant case the decision rendered by this court upon the judgment recovered by the plaintiff against the defendant in the action at law, Capital City Bank v. Hilson, 59 Fla. 245, 51 South. Rep. 853, is directly brought to our attention by the allegations in the bill. Turning to the opinion which we rendered in that case, we find that we held therein that the declaration failed to state a cause of action and that the plaintiff could not recover against the defendant upon the written contract set forth in the declaration. Upon this ground and for the reasons set forth in connection therewith in the opinion the judgment which the plaintiff had recovered was reversed. Was this such a determination upon the merits as to preclude the plaintiff from filing a bill in equity for the purpose of having the contract as actually made by the parties reformed upon the ground of mutual mistake? We dó not think so. There is a strong analogy between the instant case and the case of Hillerich v. Franklin Insurance Co., supra. See especially the distinction drawn therein between the facts in that case and those in Thomas v. Joslin, 36 Minn. 1. See also the reasoning in Spurr v. Home Ins. Co., 40 Minn. 424, 42 N. W. Rep. 206, wherein the case of Thomas v. Joslin is distinguished. We aré constrained to hold that the doctriné of election of remedies does' not apply in — 223 — the instant case and that upon the going down of the mandate from this court reversing the judgment recovered by the plaintiff in the action at law he was not precluded from bringing his bill in equity for a reformation of the contract. As to whether or not the action at law is still pending or has been dismissed by the plaintiff the transcript of the record is silent. We do not see wherein that is material. If still pending, the plaintiff still could file his bill in equity for a reformation of the contract, though he might, upon a proper showing to the court, be required to elect which suit or action he will prosecute to a final decree or judgment. Sanford v. Wright, 164 Mass. 85, 41 N. E. Rep. 120; Fleming v. Courtenay, 95 Me. 135, 49 Atl. Rep. 614; Cleveland v. Lyne, 5 Bush. (Ky.) 383; Dunlap v. Newman, 52 Ala. 178. He could not have the contract-reformed in his action at law, but would have to resort to a court of equity for that purpose. Taylor v. Glens Falls Insurance Co., 44 Fla. 273, 32 South. Rep. 887. Florida Home Insurance Co. v. Bozeman, 58 Fla. 424, 50 South. Rep. 413, is in point. In that case an action at law hád béen brought upon an insurance policy, not as such policy was actually written, but as the plaintiff claimed it should have been written. While such action was still pending, the plaintiff filed his bill in equity for a reformation of such policy. The defendant filed a plea to the bill, wherein he invoked the doctriné of election of remedies. The trial court overrated the pled and we affirmed such' ruling, saying:' “We 'do not think that théré is any inconsistency between the two suits under discussion, bu,t on the ’contrary that' they are prefectly consistent with each other, the equity suit for reformation' of the contract sued upon in the suit at law being ancillary to and in aid of the latter!” Also see to the same effect Lansing v. Commercial Union Assurance Co., 4 Nebraska (Unofficial) — 224 — 140, 93 N. W. Rep. 756, to which we referred with approval in Florida Home Insurance Co. v. Bozeman, supra. This case was also cited to us by the appellant, as we said above. We held in Phenix Insurance Co. v. Hilliard, 59 Fla. 590, 52 South. Rep. 799, 138 Amer. St. Rep. 171, that, “Where by inadvertence or otherwise a policy of fire insurance is issued contrary to the intention of the parties thereto, a court of equity may in a proper case reform the policy so as to make it express the real agreement and intention of the parties, and as so reformed to enforce the policy in order to do complete justice in the controversy.” This doctrine is not confined to or peculiarly applicable to policies of insurance, but applies with like force to such a contract as the one under consideration in the instant case. We further held in the cited case that “The right to the reformation of an instrument is not absolute, but depends on an equitable showing.” We must now determine whether such an equitable showing has been made in the bill now under consideration as to withstand the attack made upon it by the demurrer. We have had occasion several times to consider what showing must be made in order to warrant a court of equity granting a reformation of a contract. Sec Horne v. J. C. Turner Cypress Lumber Co., 55 Fla. 690, 45 South. Rep. 1016, and Jacobs v. Parodi, 50 Fla. 541, 39 South. Rep. 833, and the prior decisions of this court cited therein. Also see Robinson Point Lumber Co. v Johnson, 63 Fla. 562, 58 South. Rep. 841. We would also refer to the authorities bearing upon this point cited by the writer hereof in his dissenting opinion in Crosby v. Andrews, 61 Fla. 554, text 578, et. seq., 55 South. Rep. 57, text 64 et. seq. It is unnecessary for us to enter upon any extended discussion of this point. As we held in Jacobs v. Parodi, supra, “Where an agreement has been — 225 — actually entered into, but the contract, deed or other instrument, in its written form, does not express what was really intended by the parties thereto, equity has jurisdiction to reform the written instrument so as to make it conform to the intention, agreement and understanding of all the parties.” The reasoning in this case, as also the authorities cited therein, will be found to throw much light upon the question we are now considering. Reading the allegations in the bill concerning the mutuality of the mistake, which are admitted by the demurrer to be true, we are impelled to the conclusion that they measure up to the requirements laid down by us in the cases which we have cited. We are dealing only with the bill and the demurrer. As to what the evidence may establish we have no information. It is incumbent upon the complainant to prove the allegations of his bill: We are simply holding now that such allegations are sufficiently full and satisfactory to withstand the attack made on them by the demurrer. A court of equity having assumed jurisdiction for the purpose of reforming the written contract, may retain jurisdiction and proceed to enforce the contract after its reformation, so that full and complete justice may be administered. Phenix Insurance Co. v. Hilliard, 59 Fla. 590, 52 South. Rep. 799, 138 Amer. St. Rep. 171. See also Doggett v. Hart, 5 Fla. 215, 58 Amer. Dec. 464; El Modello Cigar Mfg. Co. v. Gato, 25 Fla. 886, text 913, 7 South. Rep. 23, text 28, 23 Amer. St. Rep. 537, 6 L. R. A. 823; Hefner v. Northwestern Mut. Life Insurance Co., 123 U. S. 747, 8 Sup. Ct. Rep. 337; 16 Cyc. 106; Sarasota Ice, Fish & Power Co. v. Lyle, 53 Fla. 1069, text 1074, 43 South. Rep. 602, text 603. It necssarily follows from what we have said that the order overruling the demurrer must be affirmed. — 226 — Whitfield, C. J., and Cockrell and Hocker, J. J., concur. Taylor, J., absent on account of illness, concurred in the opinion as prepared.