Wallace v. O'Gorman

Merwin, J. It is claimed by the plaintiffs that the order allowing the defendant O’Gorman to amend his answer Avas improperly granted. As that order is not specified in the notice of appeal (Code, § 1301) it is not here for review, (Id. § 1316.) It is suggested by the plaintiffs that the order was ex parte. That the record does not show. Assume it to have been such, it was the duty of the plaintiffs, if the order was not satisfactory to them, to have moved at special term to vacate it, and then if satisfactory relief was not obtained the matter could have been brought up on appeal. During the progress of the trial, so far as the case shows, no amendment was asked for, nor Avas the evidence above stated objected to on tile ground that it was not admissible under the answer. It is suggested by the plaintiffs that if appliea-' tian for amendment had been made on the trial the complaint in the replevin case might have been put in evidence, or that it might have been shown that part of the fraud charged was the agreement to give a mortgage and that these circumstances would have affected the question. That is not so clear. The fact would have remained that an action in replevin was pending, Avhich was necessarily based on a disaffirmance of the sale and on the proposition that by reason of fraud no title had passed, so that in effect there was no sale or purchase of the goods. We must therefore assume that the answer was properly amended. The question then is as to the effect of the pendency of the replevin suit. The authorities are very clear to the proposition that a party, after dis-affirming a contract of sale and bringing a suit in replevin for the goods, has no remedy on the contract of sale. The cases are fully discussed in the opinion of Mr. Justice Williams at special term. Morris v. Rexford, 18 N. Y. 552; Bank v. Beale, 34 N. Y. 473; Rodermund v. Clark, 46 N. Y. 354; Kinney v. Kiernan, 49 N. Y. 165; Fields v. Bland, 81 N. Y. 239; Moller v. Tuska, 87 N. Y. 166; Powers v. Benedict, 88 N. Y. 605; Bowen v. Mandeville, 95 N. Y. 237; Wile v. Brownstein, 35 Hun, 68. In Moller v. Tuska, 87 N. Y. 166, it is said very pointedly, in regard to an action in replevin, that the 892 plaintiffs, having on discovery of the fraud an election of remedies,—that is, either to disaffirm the sale and recover the property or sue for the price,—and having manifested their election by bringing the action to recover the property itself, could not thereafter revoke it and maintain a claim under the contract of sale. So in Wile v. Brownstein, 35 Hun, 68, which was in this department, where an action in replevin had been brought and a part of the goods obtained, and then a discontinuance under section 1719 as to those not found, and a new action brought for the balance of the goods apparently upon the original sale and delivery, it was held that the action could not be maintained. It is, however, claimed by the plaintiffs that the agreement for security will survive the disaffirmance of the sale so as to permit the security to be enforced for the portion they cannot reclaim in the replevin suit. Still, the mortgage was only to secure the purchase price of the goods sold. If the plaintiffs sold no goods to Murphy under the contract, a part of which was the agreement for a mortgage, they would have no standing here for the purpose of enforcing such agreement. If, as alleged in the replevin suit, the title to the goods never passed to Murphy, then Murphy is not indebted to plaintiffs for the purchase price of any goods, and there is therefore nothing within the operation of the agreement to give a mortgage. If, by reason of the replevin suit, the plaintiffs have rescinded the former contract of sale and have no cause of action on it for the price of any of the goods, as held in the Wile Case, then there is nothing for the mortgage to secure. There is no debt existing such as was contemplated to be secured. The agreement to sell, and the agreement to give a mortgage, were part of one transaction. The plaintiffs cannot rescind a part and enforce the rest. Had a mortgage in fact been given the question would perhaps be different. But now the mortgage cannot be compelled unless there is something for it to secure, according to the terms of the agreement. The only case cited by plaintiffs on this subject is Roberts v. Ely, 9 N. Y. St. Rep. 796. That does not help their position. It was there held that when a party has grounds upon wffiich to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates an allegation of a fact inconsistent with the maintenance of the other, the party having brought one and proceeded to judgment is bound by his election, and cannot proceed against the others, even though the judgment obtained fails to afford relief. We see no escape from the conclusion that the plaintiffs, having by reason of the pendency of the replevin action no remedy on the contract of sale of the goods, are not in a position to call for the enforcement of the agreement for security. It follows that the judgment must be affirmed, with costs. All concur.