Ferguson v. Fajardo

AGEE, J.

Defendant appeals from a judgment for specific performance of a written agreement, wherein defendant agreed to sell and plaintiffs agreed to buy an apartment building and the furniture therein, located at 2953-55-57 Jackson Street, San Francisco, for the sum of $35,000. The

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agreement was signed by the buyers and the seller on January 23 and 24, 1957.

The sale not having been consummated, a complaint for damages was filed by plaintiffs on August 20, 1957. Defendant filed an answer on September 23, 1957. On November 12, 1959, over two years later, plaintiffs were granted leave to amend their complaint on a noticed motion. There was no appearance made by defendant. Plaintiffs amended so as to include an additional cause of action for specific performance. Defendant filed an answer to the amended complaint on February 9, 1960, after her demurrer thereto had been overruled.

The action came to trial on February 27, 1961, before the court sitting without a jury. On May 25, 1961, after the matter was taken under submission but before the judgment, plaintiffs noticed a motion to amend their specific performance count to conform to the proof. The motion was opposed but was granted on June 8, 1961. The judgment in favor of plaintiffs then followed.

Defendant’s first contention is that over two years had elapsed since the original filing of the complaint, and therefore plaintiffs were estopped from amending the pleadings to include the count for specific performance, and it was error for the trial court to so permit the amendment. Defendant bases this argument on the doctrine of election of remedies.

The rule of law applicable in this situation is well established. Whether, and under what circumstances, a party can change his pleading so as to take advantage of an alternative remedy is discussed in 1 Witkin, California Procedure, Actions, section 51, at page 548, as follows: “Except where the principle of res judicata is involved . . ., the modern tendency is to explain election in terms of

estoppel,

i.e., to take into consideration not merely the plaintiff’s manifestation of choice but also its effect on the defendant. Hence, despite a clearly manifested intention to pursue one of two inconsistent remedies, the plaintiff may thereafter seek the other remedy if the change will not work a substantial injury to the adverse party. . . . But if the change will for some reason operate to the prejudice of the defendant, the plaintiff’s new remedy is barred, because his ‘ election ’ has continued to the point where he is