Bradley v. Brigham

C. Allen, J. There is no doubt as to the general principles of law here involved; the only difficulty is in applying them to the peculiar facts of this case. If A.’s goods are wrongfully taken by B. and sold for a sum of money, A. has an election of remedies against B., and may sue him either for the conversion, or for the money had and received by him ; bat if he elects to sue him for the money had and received, the effect is to ratify the sale by B. as an act of agency, and A. cannot thereafter treat the taking of the goods as a wrongful act, but must accept the consequences of his affirmation of the sale. And so, in like manner, if A. does any act equivalent to suing for the money had and received, by which he treats the- sale as valid and seeks to obtain the benefit of it as a valid sale, he cannot afterwards treat it as invalid for the purpose of obtaining a further advantage. Le Breton v. Peirce, 2 Allen, 8, 11. Connihan v. Thompson, 111 Mass. 270. Smith v. Baker, L. R. 8 C. P. 350. Roe v. Mutual Loan Fund, 19 Q. B. D. 347. Lythgoe v. Vernon, 5 H. & N. 180. Brewer v. Sparrow, 7 B. & C. 310. But if, on the other hand, A. in pursuing his rights does not show an intention to affirm the taking or the sale, but repudiates the same, and merely seeks as far as possible to follow and reclaim his goods or their proceeds, in whole or in part, from those into whose hands they may have come, this will not have the effect to waive the wrongful taking, or cut him off from his remedy for the original conversion, but he will only be bound to apply in reduction of damages whatever he may have received. For example, if B., having wrongfully taken A.’s goods, has delivered a portion thereof to each of several persons, or has sold the whole or a portion thereof, and subdivided the proceeds, and [145] paid a portion to each of several persons who had knowledge of the facts, A. may follow the goods or their proceeds and recover from each person who received any goods or money, without thereby waiving his remedy against B. for the original wrongful taking. Regaining one out of twenty stolen horses, or the value of one, will not bar an action for the conversion of the rest. Smith v. Baker, L. R. 8 C. P. 350. Burn v. Morris, 4 Tyrw. 485; S. C. 2 Cr. & M. 579. Browning v. Bancroft, 8 Met. 278. Greenfield Bank v. Leavitt, 17 Pick. 1. In determining whether the pursuit of one remedy bars another, it may become a question of the intention of the party. The defendant contends that the plaintiffs are barred from maintaining the present action by their former proceedings in equity. Bradley v. Brigham, 144 Mass. 181. The plaintiffs there brought a bill in equity for a final settlement of the accounts of a partnership whereof the defendant’s testator was a member. The bill alleged that the partnership was dissolved on November 1, 1865, that on or before the first of January, 1866, all debts were paid and all capital withdrawn, but that there remained several unsettled claims due to the partnership, which it was agreed might be collected by either partner and-the proceeds divided from time to time equally between the partners; that on or about January 1, 1872, certain Mexican bonds were taken in part payment of one of said claims, and placed in the hands of the defendant’s testator for safe keeping till such time as the partners might agree to make a division of the same, and remained in his possession until his death, which was in 1880 ; that the plaintiffs had not come into possession of any partnership property, but that the defendant’s testator had received other property, which ought to be accounted for as assets of the partnership; that the defendant was executor, and as such executor came into possession of said bonds, and has disposed of the same, and received the proceeds thereof to the amount of $6,000, and that the two plaintiffs were entitled to receive their share of said proceeds, namely, one third to each, and interest thereon, and had demanded of the executor that he pay to them their share of said proceeds. The prayer was for a receiver, and that an account might be taken of all and singular said partnership matters, and that the defendant be directed [146] to pay to the plaintiffs whatever sums should be found due, etc. There was no averment that the defendant as executor had acted wrongfully or negligently in making sale of the bonds, or that they were sold for less than their value. For all that appears in the bill, the plaintiffs might have assented to the sale by the defendant. There was no suggestion that the plaintiffs wished to repudiate the transaction, and to reserve a right of action against the defendant for his tortious act, but meanwhile would seek to follow the assets into his hands as executor. On the other hand, the plaintiffs averred that the sale was made by the defendant in his capacity as executor, and that he held the proceeds, that is, the whole proceeds, in that capacity, and that they were entitled to their share of those assets. They admitted that he as executor was entitled to retain one third of the proceeds, and they merely sought to recover their two thirds. The whole aspect of the bill was, that, if the plaintiffs could obtain a decree for the payment of two thirds of the proceeds of the bonds, they would thereby obtain all that they were entitled to in respect to the whole transaction of selling the bonds. Their bill was founded on an affirmance of the sale of the bonds. They pursued that case to a final decree, contending indeed, in the final argument, that the estate was responsible for the full value of the bonds, but with no suggestion upon the record that they had mistaken their remedy, or wished in any manner to change the character of their bill. The election and pursuit of the remedy in the former proceedings are a bar to the present action, and according to the terms of the report the entry must be, Judgment for the defendant.