Watkins v. American Nat. Bank

Citations

• 134 F. 36
• 67 C.C.A. 110
• 1904 U.S. App. LEXIS 4499

Syllabus

<p>1. Practice — Splitting Cause of Action Bars.</p> <p>One who avails himself, by action or by defense to an action, of a part of an indivisible claim' or cause of action, thereby estops himself from again maintaining an action or defense founded upon it One may not split his cause of action.</p> <p>2. Same — Defendant has Option to Use Facts Constituting Defense and Affirmative Cause of Action as Either, but not as Both.</p> <p>A defendant who has a claim which constitutes a defense to the action against him and an affirmative cause of action against the plaintiff has the option to use it for defense or for attack, but he cannot do both.</p> <p>If he avails himself of any part of it in defense of the action against him, he is thereby conclusively estopped from subsequently maintaining an action against the plaintiff to recover any portion of it, and he loses the excess.</p> <p>3. Contract to Convey — Damages fob Breach.</p> <p>The measure of damages for the total breach of a covenant to convey is the value of the land which the vendor agreed to convey, whenever the purchase price has been paid, and whenever a prima facie liability of the vendee to pay it exists, which has not been released, abandoned, or adjudicated adversely, and which the vendor insists upon enforcing.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 1047-1058.]</p> <p>4. Vendee’s Note — Breach of Vendor’s Contract — Damages.</p> <p>Where each party has partially performed, and has accepted the benefits of partial performance by the other party, proof of the amount of damages from the breach of the vendor’s contract to convey is indispensable to the defense of want of consideration of the vendee’s promissory note for the purchase price, based upon such a breach, because the breach constitutes a defense to the amount of the damages from it only.</p> <p>5. Action — Splitting Causes.</p> <p>The vendor sued his vendee for $6,000, balance owing upon his note fo