
    SILBER et al. v. Gale, Jr.
    (Decided December 22, 1930.)
    
      Mr. II. R. Schuler, for plaintiffs in error.
    
      Messrs. Turney dt Sipe, for defendant in error.
   Levine, J.

The parties appear in the same order as they did in the common pleas court. Plaintiffs filed an action in said court setting forth two causes of action. The first is for a reformation of a written lease to make it conform to the alleged intention of the parties; it being alleged in the petition that, while the lease described the premises leased as apartment No. 8, the intention of the parties was to describe the same as apartment No. 7, which apartment the defendant did occupy under said lease.

The second cause of action seeks to recover for the rental of said apartment under the lease as reformed.

The defendant’s answer, in addition to a general denial, sets up three defenses, the second of which was to the effect that before bringing this action in the common pleas court plaintiffs had filed a suit in the municipal court as a law action, as for rent, and that thereby the plaintiffs, having elected to resort to law in a law action, are precluded from further resorting to the court of common pleas to obtain the relief which they now seek to obtain.

The record discloses that the plaintiffs own an apartment house located at 5272 Kemper road, in the village of Shaker Heights, Cuyahoga county. On August 13, 1928, defendant, desiring to rent an apartment in said building, was shown the vacant apartment in said building, on the first floor thereof, which apartment was known as apartment No. 7. In the lease which was executed between plaintiffs and the defendant the apartment let to defendant was described as apartment No. 8.

The provisions of the lease, amongst others, were to the effect that it was to continue for a period of one year, beginning September 1, 1928; that the rental was to be paid each month in advance.

Defendant, Hoyt W. G-ale, Jr., took possession of the vacant suite which was known as apartment No. 7. He continued to occupy said apartment and paid rental thereon in accordance with the provisions of the written lease for the months of September and October, 1928, after which time defendant vacated the apartment. This apartment remained vacant until the month of August, 1929. In April, 1929, a suit was filed by plaintiffs against defendant to recover the rentals which plaintiffs claim to be dne under this lease. A statement of defense was filed by defendant wherein it was claimed that defendant did not take possession of the apartment which was described in the lease as apartment No. 8; that as a matter of fact he occupied apartment No. 7; and that, as the suit for rentals is based upon the written lease, the same cannot be maintained under the law. Thereupon, a motion for judgment on the pleadings was filed by defendant.

Before any hearing was had on said motion, and before the same was submitted to the court, the plaintiffs dismissed the statement of claim without prejudice, and thereafter filed the present action setting forth two causes of action, as above detailed.

The common pleas court, without going into any other questions, decided this case upon one point, namely, that the filing of an action in the municipal court by these plaintiffs against this defendant amounted to an election of remedies, and that for this reason they were precluded' from further prosecuting their case in the common pleas court, seeking the relief set forth in the petition.

The defendant, by way of justifying the decision of the common pleas court, relies upon a citation from 20 Corpus Juris, page 29, as follows: “According to the weight of authority the mere commencement of any proceeding to enforce one remedial right, in a court having jurisdiction to entertain such proceeding, is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights.” Also upon Frisch v. Wells, 200 Mass., 429, 86 N. E., 775, 776, 23 L. R. A. (N. S.), 144, as follows: “It is not, however, the judgment which may be obtained, but the commencement of a suit to enforce a coexisting inconsistent remedy in a court having jurisdiction, which constitutes the decisive act, and makes the election binding.” He also cites Spurdis v. Karadontes, (Sup.), 170 N. Y. S., 92.

A clear understanding as to the underlying reason for the doctrine of election of remedies will aid us in the determination of this suit. It is essentially based upon the doctrine of estoppel, and before the same can be invoked it must be shown that the action of one of the parties has caused the other party to change his position to his own detriment. The filing of this suit in the municipal court by plaintiffs against defendant for rentals claimed to have become due under the written lease in no way caused defendant to change his position to his detriment, and hence, in our opinion, estoppel does not lie, and it follows, therefore, since the doctrine of election of remedies is based upon estoppel, that said doctrine is not applicable to the present case.

We are inclined to the further opinion that, even if the case had not been dismissed in the municipal court without prejudice, and had been heard by the trial court, wherein a judgment was' had to the effect that no suit could be maintained under the written lease, because it described the premises as apartment No. 8, whereas the apartment which defendant occupied was apartment No. 7, even this would have been no bar to the present action, which seeks a reformation of the description of the apartment found in the lease from No. 8 to No. 7. These two remedies are not inconsistent, and therefore the determination of the suit for rental based upon the written lease, in favor of defendant, for the reasons given, should not be held to be a bar to the suit in equity seeking a reformation of the lease, so as to make it correspond to the real intention of the parties.

We cite from Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R., 1163, paragraph 2 of the syllabus, as follows: “In order that an election of one remedial right shall be a bar to the pursuit of another, the same must be inconsistent and the election made with knowledge and intention and purpose to elect. The mere bringing of a suit is not determinative of the right, but the party making the election must have received some benefit under the same, or have caused detriment to the other party, or pursued his remedy to final judgment.”

We are, of course, not required at this time to pass upon the merits involved in the case. It is quite possible that the trial court upon another trial may reach the same conclusion he did in this case, after hearing the merits of the controversy. The case, however, has not reached the stage of a decision upon the merits, and we are of the opinion that the court committed error in holding that there was an election of remedies so as to preclude the plaintiffs from prosecuting the present action.

Holding as we do, we are of the opinion that the judgment of the common pleas court was erroneous, and it is therefore reversed, and the cause remanded for new proceedings according to law.

Judgment reversed and cause remanded.

Vickery, P. J., and Weygandt, J., concur.  