Babcock, Cornish & Co. v. Urquhart

Citations

• 53 Wash. 168
• 101 P. 713
• 1909 Wash. LEXIS 1289

Syllabus

<p>Election oe Remedies — -Acts Constituting — Subsequent Suits— Irrevocability. An election of remedies, once made, is irrevocable; and where a plaintiff has by his first action elected the remedy of damages, and upon dismissal, commenced a second suit attempting to elect another remedy, and upon dismissal thereof commenced a third suit for damages, the defendant cannot in the last suit set up the second action as an election of an inconsistent remedy; since the election of damages was irrevocably made' in the first instance, and the doctrine has no application where the remedy shown is not available.</p> <p>Same — Option as to Election — Waiver. After an election of remedies is once made, it is fixed, and does not depend upon the subsequent choice of the parties, except as it is optional to waive or plead it.</p> <p>Same — Pleading—General Denial in Reply — Evidence Admissible. Where an election of the remedy of damages was made by plaintiff’s first action, which was dismissed, and plaintiff attempted to elect another remedy in a second action which was also dismissed, in a third action for damages, in which the defendant affirmatively pleaded the second action as an election of an inconsistent remedy, the plaintiff may, under a general denial in his reply, show the •original election of the remedy of damages by the first action without having specially pleaded the first suit.</p> <p>Evidence — Parol to Vary Writing — -Water Rights — Contract of Sale — Certainty. A written contract of sale requiring the vendor to defend the water right title to meadow lands and to convey one ■cubic foot of water per second for each hundred acres of meadow lands, there being 230 acres, is not so uncertain as to permit of evidence of an oral contemporaneous understanding to the effect that the grantors were not required to furnish that amount of water; and failure in this respect would be a breach of the contract.</p> <p>Vendor and Purchaser — Contract—Breach—Defects in Title. The e