Bill v. Gattavara , 34 Wash. 2d 645 ( 1949 )

I am not in accord with the application made in the majority opinion of the doctrines of res judicata and election of remedies to the factual situation presented by the record of this case.

In order that the judgment obtained by Bill against Gattavara in the prior action might be pleaded in bar to the present action, it would have to appear that there was a concurrence of identity in four respects: (1) of subject matter; (2) of cause of action; (3) of persons and parties; and (4) in the quality of the persons for or against whom the claim is made. Northern PacificR. Co. v. Snohomish County, 101 Wash. 686, 172 P. 878; Johnson v. National Bank of Commerce,152 Wash. 47, 277 P. 79; Watkins v. Seattle, 2 Wash. 2d 695,99 P.2d 427; Walsh v. Wolff, 32 Wash. 2d 285,201 P.2d 215.

Bill and Gattavara were parties to the former suit, but there the identity disappears. The former suit was an action for trespass upon timber land. This action was one to recover money from one who was not a party to the trespass, but who had received money representing the purchase price of timber taken from the land belonging to Bill, and to which he was entitled. There was no cause of action against Gattavara for trespass. The right to the purchase money for the timber taken from the land of Bill could not have been litigated in the trespass action. The judgment in the trespass action, therefore, did not become resjudicata of the present action.

When Bill brought his action against Hailstone, Garner, and Gattavara for trespass, he made an election of remedies as to those against whom he had such a cause of action. It developed that he had no such a cause of action against Gattavara, not because of failure to prove existing facts rendering Gattavara guilty of a trespass upon his land, but because Gattavara was not a trespasser and had nothing to do with the trespass committed by others. The remedy he chose was a mistaken remedy. We have decided that, in order to invoke the doctrine of election of remedies as a defense, it must appear that the plaintiff had two or more inconsistent remedies available to him against the defendant, any one of which he was at liberty to pursue. If the remedy chosen is not available to a plaintiff, even though he unsuccessfully pursues it, there has been no election. Babcock,Cornish Co. v. Urquhart, 53 Wash. 168, 101 P. 713; Roy v.Vaughan, 100 Wash. 345, 170 P. 1019; Spokane Security FinanceCo. v. Crowley Lumber Co., 150 Wash. 559, 274 P. 102; LaborHall Assn., Inc. v. Danielsen, 24 Wash. 2d 75, 163 P.2d 167, 161 A.L.R. 1079.

The judgment obtained by Bill against Hailstone, the trespasser, had no connection with the money received by Gattavara for the purchase of the timber belonging to Bill, and the fact that Bill accepted a small amount from the judgment debtor in settlement under a threat of bankruptcy did not affect his right to claim the money received by another party for his timber. If Hailstone had paid the judgment in full, then he might be heard to say that Bill had been fully compensated for the timber taken from him, and he therefore was subrogated to Bill's rights against Gattavara, but he did not do so, and neither he nor Gattavara are in any position to say that Bill should not have the money paid for his property.

The money does not belong to the one who bought the timber, as it represents the purchase price thereof. It does not belong to Gattavara, because he had no salable interest in the timber purchased. It does not belong to Hailstone, because he never had any salable interest in such timber. By a mere process of elimination, it must follow that the money belongs to Bill, and be recoverable in this action.