McDonald v. Pike

Cassodat, J. The decision in this court in Pike v. Vaughn, 39 Wis., 499, S. C., 45 Wis., 660, need not be here repeated. In this case the court, in effect, charged the jury that, by accepting a conveyance of a lot from Yaughn in settlement of the other suit, Pike must be presumed to have got the benefit of the 160,000 feet of logs,.board measure, which he never received, but which were taken by the plaintiff and sold to Yaughn, and that the amount of those logs should be taken into account in favor of the plaintiff in this action,_ as a part of the logs delivered by him to the defendant. The exception to this portion of the charge must be sus [222] tained. That settlement undoubtedly confirmed Vaughn’s title to the logs as against the defendant, Pike. McDonald can make no claim to them, for he has sold them to Vaughn, and received his pay for them. Since McDonald still holds the consideration for the logs, whiqh he received from Vaughn, he is estopped from disclaiming such sale and recovering in this action on the ground that he had previously sold and delivered the same logs to the defendant. A party is not thus allowed to occupy an inconsistent position for the purpose of maintaining two different sales and recovering a double consideration for the same articles. Cooper v. Cleghorn, 50 Wis., 113; Rodermund v. Clark, 46 N. Y., 354. The mere settlement of the suit by Vaughn is no indication that he abandoned or.surrendered his claim to the logs, nor that he repurchased the same from Piles. Parties certainly have the right to compromise conflicting claims without any surrender on either side. In any view of the case, McDonald is in no position to obtain pay for the logs a second time merely because the former suit was settled as indicated. As there must be a new trial it is unnecessary to say more. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.