F. E. Lykes & Co. v. Grove

Stacy, O. J".,

after stating the case: Can a plaintiff unite in the same complaint an action for the rescission of a contract and one for its breach? The decisions are to the effect that he may not, as this would be to deny and affirm the contract at the same time — “to blow hot and cold in the same breath.” The rights are opposed and the remedies are inconsistent.

Machine Co. v. Owings,

140 N. C., 503 , 53 S. E., 345 ;

Davis v. Lumber Co.,

132 N. C., 233 , 43 S. E., 650 ;

Fleming v. Congleton, 111

N. C., 186, 98 S. E., 449 ;

Pritchard v. Williams,

175 N. C., 319 , 95 S. E., 570 ;

Power Co. v. Casualty Co.,

193 N. C., 618 , 137 S. E., 817 ;

Irvin v. Harris,

182 N. C., 647 , 109 S. E., 867 ; 9 R. C. L., 965.

Speaking to the subject in

Stewart v. Realty Co.,

159 N. C., 230 , 74 S. E., 736 ,

Brown, J.,

delivering the opinion of the Court, says: “Res

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cission will bar an action for damages wben the only damage sustained is in not getting what was bargained for, and no special damages have been proven. 14 Am. & E., 170. But where special damages have been sustained, so that the party defrauded is damaged, notwithstanding the rescission, his rescission of the contract will not bar a recovery of such special damages.

R. R. Co. v. Hodnett,

29 Ga., 461 ;

Nash v. Title Insurance Co.,

163 Mass., 574 ;

Warren v. Cole,

15 Mich., 265 . . . . It seems to be well settled that an election once made, with knowledge of the facts, between coexisting, remedial rights, which are inconsistent, is irrevocable and conclusive, irrespective of intent, and constitutes an absolute bar to any action, suit, or proceeding, based upon any remedial right inconsistent with that asserted by the election. 15 Cyc., 262;

Moller v. Tusker,

87 N. Y., 166 ;

Clausen v. Head,

110 Wis., 405 .”

Nor is the decision in

Anderson v. Corporation,

155 N. C., 131 , 71 S. E., 221 , cited and relied upon by plaintiff, at variance with this position. There the action was in affirmance of the contract, which provided that unless the improvements stipulated in the agreement of the parties were made agreeably thereto, plaintiff’s money would be refunded and the contract canceled. And in

Troxler v. Building Co.,

137 N. C., 51 , 49 S. E., 58 , rescission was sought and obtained on the ground of fraud. Fraud was also the basis of the action in

Hinsdale v. Phillips,

199 N. C., 563 .

The law is otherwise with respect to cumulative and consistent remedies, all of which are based either on affirmance or disaffirmance of the contract.

Machine Co. v. Owings, supra; Bare v. Thacker,

190 N. C., 499 , 130 S. E., 164 ;

Case v. Ewbanks,

194 N. C., 775 , 140 S. E., 709 ; 9 R. C. L., 958; 20 C. J., 13. And a distinction is to be observed between an abandonment of performance which recognizes the existence of a valid contract, and rescission

aJb initio-. Flickinger v. Glass,

222 N. Y., 404 ;

Anderson v. Corporation, supra.

There was no error, therefore, in requiring the plaintiff to elect between its action to rescind, and its alternative and inconsistent action for damages.

Warren v. Susman,

168 N. C., 457 , 84 S. E., 760 ;

Fields v. Brown,

160 N. C., 295 , 76 S. E., 8 ;

Huggins v. Waters,

154 N. C., 443 , 70 S. E., 843 ;

Dunlap v. Ingram,

57 N. C., 178 ;

Pettijohn v. Williams,

55 N. C., 302 ;

Marx v. Marx,

89 Mo. App., 455 ; 9 R. C. L., 958; 20 C. J., 44. Where two inconsistent causes of action are improperly joined in the same complaint, it is proper to require the plaintiff to adopt one and abandon the other, or to reform the complaint so as to make it square with the rules of good pleading.

Lyon v. R. R.,

165 N. C., 143 , 81 S. E., 1 .

The cases of

Worth v. Trust Co.,

152 N. C., 242 , 67 S. E., 590 , and

Wiggins v. Motor Co., 188

N. C., 316, 124 S. E., 621 , do not announce

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a contrary rule, but, by correct interpretation, tbey accord with tbis procedure. See, also, valuable opinion of

Cothran,

Jin the case of

McMahan v. McMahan,

115 S. E., 293 , 26 A. L. R., 1295.

It should be observed, perhaps, that we are not dealing with inconsistent

(McLamb v. McPhail,

126 N. C., 218 , 35 S. E., 426 ) or contradictory

(Upton v. R. R.,

128 N. C., 173 , 38 S. E., 736 ) defenses, set forth by answer, such as are permitted under C. S., 522.

Williams v. Hutton,

164 N. C., 216 , 80 S. E., 257 .

It is equally clear, we think, that the trial court ruled correctly in entering judgment as of nonsuit on the plaintiff's first cause of action. There is no allegation of fraud, and no sufficient evidence of total or substantial failure of consideration, available to the plaintiff. 24 A. & E. Enc, of Law, 644. Even if the erection of the Arcade Building were a material inducement to the contracts of purchase, as plaintiff alleges, this has been completed as originally contemplated, or substantially so, with the exception of the tower, according to plaintiff's own witnesses. Likewise, if the agreement to- aid the plaintiff in financing the erection of a building on the lots purchased by it were a material inducement to the contracts of purchase, as plaintiff alleges, it does not appear from the record that the plaintiff so positioned itself as to be able to insist upon the terms of this agreement, or, if so, that it suffered injury from its breach or nonperformance on the part of the defendants.

Flour Mills v. Distributing Co.,

171 N. C., 708 , 88 S. E., 771 ; Black on Rescission and Cancellation, sections 198, 202, 213.

The record presents no sufficient reason for disturbing the ruling of the Superior Court.

Affirmed.