W. W. Bierce Ltd. v. Hutchins

OPINION OF THE COURT BY FREAR, C.J. This is a petition for a rehearing of the case decided ante, page 118. The action is replevin for rails, cars, etc., claimed to have been sold by the plaintiff on the condition that title should remain in it until payment. The court held that even if title were to remain in the plaintiff until payment still the plaintiff could not maintain replevin, which is based on the theory that the title was in it, for the reason that it had pre viously elected an inconsistent right by bringing an action for the price and to enforce a materialman’s lien, which was based, on the theory that the title had passed to the vendee. Tor the purposes of the original decision it was assumed that the contract was one of conditional sale or, perhaps more accurately speaking, that it was an executory contract to sell upon condition precedent. We will proceed upon that assumption for the purposes of the present decision also, although it may not be out of place to state that in the opinion of a majority of the court the sale was absolute and therefore replevin could not be maintained in any event. The petition sets forth seven grounds, all of which were either-considered by the court or not raised by counsel at the original hearing. They may be summed up as follows: (1) That the — 719 — court should have decided, but did not do so, whether the plaintiff is entitled to a new trial as regards the items which, by reason of not having become attached to the realty, were not subject to a materialman’s lien, and (2) that the court overlooked or did not give due consideration to certain points bearing upon the question whether the institution of the material-man’s lien suit amounted to an election. As to the first of these grounds, the court merely reversed the judgment of the trial court and remanded the case for such further proceedings as might be proper, not knowing whether the plaintiff would be able to introduce further evidence bearing on the question of election which would make it worth while to have a new trial. Apparently the plaintiff knows of no other evidence that it can introduce upon that question but now asks the court to decide whether the election manifested by the institution of the lien suit extended to all the items covered by the contract or only to the lienable items. It was unnecessary to pass upon this as a primary question in the original opinion but it was passed upon incidentally by inference from the reasoning in that opinion. It goes without saying that the plaintiff could not elect to treat the sale as absolute as to part of the property covered and conditional as to the remainder. The lien suit was in fact instituted as to all the items. As to the second ground, it will be unnecessary to discuss in detail all the points raised by counsel, for to do that would mean largely a repetition of what was said with more or less fulness in the former opinion upon the doctrine of election and its application to the facts of this case. It will be sufficient to refer to a single point in regard to which counsel for the plaintiff seems not fully to understand the former opinion. As shown in that opinion the election is not so much between remedies as between rights. The election in this case was between the right of the plaintiff to proceed upon the theory that the sale was conditional and that the title remained in it until payment, and the right to proceed on the theory that the sale was — 720 — absolute and that the title had passed to the vendee, the plaintiff having a choice between such rights if the contract was one of conditional sale. The election was between the right to the property on the theory of conditional sale and the right to the purchase price on the theory of absolute sale. It was not, as contended by the plaintiff, between a remedy by lien suit and a remedy by replevin. An election is an unequivocally manifested choice between two or more inconsistent rights. The pursuit of a particular remedy is the manifestation of the choice between the rights. If two rights exist the choice may be manifested by the institution of an action, whether the action is or could be carried to completion with success or not. If the action is discontinued or fails of success the plaintiff may pursue other consistent remedies, that is, other remedies based on the same or a consistent right, but not other inconsistent remedies, that is, remedies based on an inconsistent right. If there is in fact only one right the institution of any number of actions on supposed but nonexisting other inconsistent rights will not amount to an election or prevent the institution after-wards of an action upon the only right that does exist. Likewise, if there are in fact two inconsistent rights and an action is brought on one under a mistake of fact and discontinued upon obtaining knowledge of the facts, there will be no election and the other inconsistent right may afterwards be proceeded upon, provided there are no elements of an estoppel in pais, as, for instance, prejudice to the other side. In the present ease the plaintiff might have elected to rely on the right of property in itself under' a conditional sale by bringing any one of several actions, as, for instance, replevin, trespass, detinue, etc., or it might have manifested its election to proceed on the theory of an absolute sale and property in the vendee by bringing a lien suit or an action of assumpsit accompanied by attachment, etc., or it might have brought an action which would be consistent with either right and not amount to an election, as, for instance, a simple action of assumpsit for the purchase price. Under some circumstances a mere action of assumpsit would show an — 721 — election, but not in this case because of the special provisions of the contract. See former opinion and cases there cited. Also Typograph Co. v. Macgurn, 119 Mich. 533. These principles are set forth more fully in the former opinion and cases there cited, and also in 15 Cyc. 251 et seq., and numerous recent cases there cited, which volume has been received since the former decision was rendered. The following quotations are from this volume: “An election of remedies is the choice by a party to an action of one of two or more coexisting remedial rights. All actions which proceed upon the theory that the title to property remains in plaintiff are naturally inconsistent with those which proceed upon the theory that title has passed to defendant. But there is no inconsistency between different legal remedial rights, all of which are based upon claim of title to property in plaintiff or all of which are based upon the affirmance of title in defendant. . . . The prosecution of one remedial right to judgment or decree, whether the judgment or decree is for or against plaintiff, is a decisive act which constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. . . . By preponderance of authority the mere commencement of any proceeding to enforce one remedial right, in a court having jurisdiction to entertain the same, is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. ... In order to constitute a binding election the party must at the time the election is alleged to have been made have knowledge of the facts from which the coexisting, inconsistent remedial rights arise. ... A person who prosecutes an action or suit based upon a remedial right which he erroneously supposes he has, and is defeated because of the error, has not made a conclusive election, and is not precluded from prosecuting an action or suit based upon an inconsistent remedial right. . . . An election once made, with knowledge of the facts, between coexisting remedial rights which are inconsistent is irrevocable and conclusive, irrespective of intent [Clausen v. Head, 110 Wis. 405], and constitutes an absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with that asserted by the election.” The italics are ours. — 722 — The plaintiff contends that the election was merely between the remedy by replevin and the remedy by lien suit and that since, as it contends, the lien suit would have' been ineffectual, there could not have been an election because there were not two remedies to elect between. But, as shown above, the question is whether there were two or more inconsistent remedial rights, not whether, if there were two such rights, a particular proceeding adopted by the plaintiff to enforce one of them would have been successful. Even if the lien suit had been carried to completion and had failed of success there might still have been an election. See above quotation; also Renne v. Townsend, 100 N. W. (Ia.) 48; also Hickman v. Richburg, 122 Ala. 638, cited in the former opinion, holding that the bringing of a materialman’s lien, suit, even though it must necessarily have been ineffectual, amounted to an election and an abandonment of the title reserved on the sale. It is true that there is more or less confusion in the books in the use of the words “remedies” and “rights” in connection with the doctrine of election, but in general it will be found upon an examination of the cases that where it is held that no election has been made, either there was in fact no right, although one was supposed to exist, for the enforcement of which the action claimed to manifest an election was instituted, or if there was such a right the action was instituted under a msitake of fact, or proceedings were brought on two or more inconsistent rights at the same time, in which case, of course, there was no election. Still, most of the cases speak of rights or causes of action as distinguished from mere forms of action. For instance, in Snow v. Alley, 156 Mass. 193, upon which the plaintiff relies, the court, by Mr. Justice Holmes, said: “Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of choice. But the fact that a party wrongly supposes that he has two such rights and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that.” — 723 — In Butler v. Hildreth, 5 Met. 49, cited in Snow v. Alley, the court said, by Chief Justice Shaw: “The assignee has an election, not of remedies merely, but of rights. But an assertion of one is necessarily a renunciation of the other. This results from the plain and very obvious consideration, that the assignee cannot affirm the sale in part and disaffirm it in part; if it is to stand as a valid sale the property of the goods remains vested in the purchaser and he remains liable for the price. But if the sale is avoided and set aside, it stands as if it had never been made. . . . What action on the part of the assignee is to be taken as proof of his election? . . .We think that if the assignee commences an action against the purchaser for the price, and causes his property to be attached to secure it, this is a significant act, an unequivocal assertion that he does not impeach the sale but by necessary implication affirms it.” It thus seems that there may be an election not only when the action instituted has not been carried to completion but also when it has been carried to completion unsuccessfully. It is unnecessary, as intimated in the former opinion, to say definitely whether the lien suit could have been carried to completion successfully or not, and in Johnson-Brickman Co. v. Mo. Pac. R. Co., 126 Mo. 344, cited by the plaintiff, it was held that where the action was not carried to completion neither the trial court nor the appellate court could determine whether it could have been carried to completion with success, — although the court gave this as one of the reasons why it should hold, as it did, that the commencement of an action accompanied by an attachment, if not carried to judgment, would not amount to an election so as to prevent a subsequent action of replevin, which ruling it must be conceded is contrary to the views expressed in our former opinion, but which also in our opinion is contrary to the great weight of authority and to cases referred to by that court and is based upon a confusion as to rights and remedies and upon the idea that to constitute an election there must exist facts amounting to an estoppel in pais. Election differs from the various classes of estoppel and rests on the principle that one cannot occupy inconsistent positions. Whether — 724 — the conclusion reached by that court was nevertheless correct on the ground that the first suit was brought under a mistake of fact no opinion need be expressed. Kinney, McClanahan & Cooper, S. H. Derby and C. A. Galbraith for plaintiff. J. W. Cathcart and Castle & Withington for defendant. The petition for a rehearing is denied.