Sanger v. Wood

The Chancellor. If the plaintiffs had done nothing to affirm the contract of the 39th of April, 1816, after* the agreement between the defendant and W. Soulden 4* Co. had come to their knowledge, I should have been strongly inclined to relieve them from that contract. It is true, the allegation of fraud, and of any direct and authorized agency, on the part of the defendant, is denied in the answer; and we have no other proof in the case but such as the answer and the documents mentioned in the pleadings afford. But, from those documents, I am induced to think, the defendant was bound to have disclosed to the plaintiffs,'in April, 1816, his prior dealings with Soulden, as well as the new agreement with Jones, of the January preceding. The relationship between the parties arising under the original contract of 1813, and the agency which the defendant, in fact, assumed in the management and disposition of the entire interest of all the parties, imposed upon him the duty of a frank and full disclosure of the whole case, when the parties came to a final conclusion of their concern, in April, 1816. If the contract, of the 4th of September preceding, had been definitive and absolute, then the defendant Would not have been under any obligation to disclose his subsequent negotiations with Jones arid with Soulden, who came in to assist Jones. But that contract of sale was .Hot absolute, for it was expressly declared, that in case the sale to Jones 4 Merricks, could be enforced, it was to be, and the contract in that case to be .void. The plaintiffs ought to have been informed what Jones had since done, and what Soulden had since promised, so [421] ihat they might have exercised their judgment on the question, whether the original agreement could have been enforced, and how far the substitution of Soulden Co. was a mere continuation (as I think it was) of the original agreement. For these reasons, I should have been inclined to have relieved the plaintiffs. The case, however, as it appears before me, is not of a very gross kind, or one presenting claims for any extraordinary indulgence. In my opinion, the plaintiffs may justly be considered as having elected to take their remedy at law under the contract of April, 1816. The bill states that the plaintiffs sued at law un» der that last contract, and which was, of course, in aErmance of it; and that, a few days before the trial at the Madison circuit, they discovered, the fraud now set up as a ground to rescind that contract. And yet, notwithstanding that discovery, they go to trial in the suit on that contract, and take a verdict for the moneys due from the defendant under it, and, afterwards, judgment is entered up by them on that verdict; and, in April last, they even apply to this court for leave to take out execution at law on the judgment so recovered. The last motion was, indeed, made on the ground that it might not prejudice their rights in this suit, but I am induced to think they had already waived those rights by their previous proceedings. The suit at law, and the action here, are inconsistent with each other, since the one aErms, and the other seeks to disaErm, the contract in question. It is probable the amount of the judgment may have been already collected, and the plaintiffs could not, for a moment, be permitted to keep the moneys recovered under that contract, if they should succeed in their bill to have it annulled. In a case where the remedies sought are so absolutely repugnant to each other, the plaintiffs ought to have made their election at once, after they came to the knowledge of the facts. If they meant to have disannulled the contract of April. [422] 1810, then it was vexatious, as well as. useless, to have gone on to a trial, and judgment and execution. They had no right to try the experiment how much they could recover at law under the contract, (for the bill admits the suit at law was brought upon that agreement,) before they elected to waive it, and then retaining their .verdict and entering judgment' at law, apply to this court to. set the contract aside, This proceeding would-be giving the plaintiffs a double advantage, apd is unreasonable and inadmissible, Any, decisive act of the party, with knowledge of his rights and. of. the fact, determines his.election in the case of conflicting and inconsistent remedies. If he take, out a commission of bankruptcy, he cannot sue the. bankrupt at law, for-, that, would be again superseding, the: commission, (Ex parte Ward, 1 Atk. 153. Ex parte Lewes, 1 Atk. 154.) So,chapging-a.party in.an execution.atlaw after a. cqn\mission issued, is an election to take-the remedy at law,-and the party must abide-by it. (Ex parte Warder, 3 Bro. 191. Ex parte Cator, 3 Bro. 216,) So* again; ifa party, seeks relief iniquity by. bill waiving a.forfeiture - at law* though,he fail in, obtaining relief, he. cannot:,after-wards insist on the- forfeiture at law. (1 Sch & Lef. 441.) There cannot be any doubt of. the principle, that-equity. will pot-relieve a party fully apprized of his rights, and de*. liberately confirming a former act. The doctrine has been again and again declared, (3 P. Wms. 294. note, E. &c. 1 Atk. 344. 1 Ball & Beatty, 340.) And ! consider the going- to trial, ip. the action .at law, and ¡especially the entry of judgment afterwards upon the verdict, as a decided'confirmation of the. settlement in April, 1816. I shall,, accordingly, dismiss this bill-; but .from the opipionwhichl have.formed upon the.merits.of the transact tion,.I am not willing to,charge the plaintiffs..with-costs, ,apd 1 shall, consequently,, dismiss the bill without costs. Order accordingly.