Dudley E. Jones Co. v. Daniel

Riddick, J., (after stating the facts.) The question presented by this appeal is, whether the plaintiff, by its action upon the notes executed for the purchase money of a “Sailer Patent Cotton Elevator,” waived the condition expressed in the notes that the elevator should remain its property until the purchase money was fully paid. Now an action for the price of an article cannot be maintained until the title has passed to the vendee. Benjamin on Sales (Bennett’s 7th Ed.) 795. An action by the vendor for the price is an admission that the title has passed. In this case it was a condition of the contract that the title should remain in the plaintiff company until the price was paid. Under the contract, upon a failure to pay, plaintiff might reclaim the property, or waive the condition and sue for the price; but it could not recover the price, and also retake the property. Two inconsistent courses being therefore open, it was necessary to elect which it would pursue, and, electing to pursue one course, it would, as a general rule, be debarred from the other. Cox v. Harris, 64 Ark. 213; Bailey v. Hervey, 135 Mass. 172. But to this rule there is the exception that an election made without fault, and in ignorance of material facts, is not binding when no other person’s rights have been affected thereby. White v. Beal & Fletcher Grocer Co., 65 Ark. 278; Watson v. Watson, 128 Mass. 152. It is admitted by the agreed statement of facts in this case that one of the defendants, Nat Smith, at the time of the commencement of the action on the notes, was insolvent, and so remained until his death; that the plaintiff company did not know that W. N. Smith, the remaining defendant, was a minor at the time of the execution of the notes sued on until he set up that defense in his answer; and that, so soon as it became aware of this fact, the company, within a month after its commencement, dismissed the action upon the notes, without asking judgment against either of the defendants. In other words, the company at the time it elected to bring suit on the notes was ignorant of the material fact that one of the defendants—the only one not shown to be insolvent—was not bound by the notes. Under these circumstances, if the rights of other parties were not affected by its election, it was not bound thereby, and could dismiss its action on the notes, and bring suit for the property. Counsel for appellee contends that the rights of defendant Daniel were affected by plaintiff’s election, but that question was not submitted to the jury, and the evidence bearing on it is'not sufficient for us to treat it as conclusively established. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.