Franke v. Eby, Davis & Co.

EllisoN, J. — Plaintiff was mortgagee and in possession of certain property seized in a suit by attachment instituted by defendants against a third party. The goods were sold pending the attachment, by order of court, under the attachment law, as being perishable. Plaintiff filed her interplea claiming the goods as her property. She was successful and received of the sheriff the proceeds of the sale. She thereupon instituted this action for damages, claiming that by reason of the attachment and sale she lost $1,493 of her mortgage lien. A demurrer was interposed to the petition showing the foregoing facts on the ground that it stated no cause of action. The demurrer was sustained, and plaintiff appeals. The defendants contend that when plaintiff received the proceeds of the sale she waived her right to anything further; that she elected to treat the money in the hands of the sheriff as money had and received for her use; that, in accepting the proceeds of the property, she waived the tort; that, therefore, the demurrer was properly sustained. The law is unquestionably as stated in an authority cited by defendants’ counsel, viz.: Where one has wrongfully obtained money of another, or has converted his property into [583] money, or money’s worth, the latter may waive the tort and sue on the implied contract to pay over the money, and that, when he makes his election, he is hound by his choice of remedies. The important question is whether this principle of law is applicable to this case. In an action of trespass, the return and acceptance of the goods does not defeat the action, it only goes in mitigation of damages. So in this case, if the property had remained in specie, the mere acceptance of the property by the interpleader would not have barred her action for the trespass, though it would have mitigated the damages. That the action is not barred, is established by the cases of Perrin v. Claflin, 11 Mo. 13, and Clark v. Brott, 71 Mo. 475. Will, therefore, the acceptance of the proceeds bar the action? It seems to' me that a correct disposition of the question depends on the nature or status of the money realized on the sale ordered by the court. Such sales are not made by the parties, neither are they, properly speaking, made by the sheriff, they are made by the court; they may be likened to sales in admiralty, or to statutory sales of estrays, boats, stolen property, property uncalled for in the possession of common carriers, etc. Young v. Kellar, 94 Mo. 581. The proceeds of the sale take the place of the property — merely changes its form (Oeters v. Aehle, 31 Mo. 380); it is merely a substitute, and as in the foregoing classes of property the money remains in custody for the party who may ultimately show his right thereto. It is true that if A wrongfully sell B’s property B may sue for the tort or replevy the property, or waive the tort and sue for the money which A received for the property, in which latter instance he ratifies the sale. He makes his election of remedies. But, in case of sale of property attached by order of court, the purchaser’s title is good .against the world, notwith [584] standing the property did not belong to the defendant in the attachment (Young v. Kellar, supra,) and the privilege of the trae owner to elect his remedy is not complete, for he cannot elect to replevy or take back the property. The doctrine of election is based on full freedom of choice, and if such freedom does not exist the rule ought not to be applied. Again, the sale of B’s property by A was directly antagonistic to B’s right, which right B could waive by ratifying the sale and accepting the proceeds. But a-sale of perishable property by order of court in an attachment proceeding is not antagonistic to, or in subversion of, the true owner’s right. It is rather in recognition of such right, for it reserves to him that which would otherwise perish. See authorities cited in Young v. Kellar, supra. We think, therefore, that the acceptance of the proceeds of sale of attached property will not bar a suit in trespass, and our conclusion is that the demurrer ought not to have been sustained. The money stands for the property, and if it be less than the value of the property the difference is damage to the owner. The cases of sales in admiralty cited to us, we deem inapplicable. Counsel have not cited us to a case which decides the question here reviewed. In neither of the cases of Perrin v. Claflin, 11 Mo. 113, and Clark v. Brott, 71 Mo. 475, was the proceeds of the sale of the goods received. Neither was the question decided in Taylor v. Hines, 31 Mo. App. 622. In that case a portion of the, proceeds of the sale had been applied to the costs or otherwise wasted thereby, to that extent destroying the mortgagee interpleader’s security; and the action was to recover that portion of the proceeds so wasted or applied. Judgment reversed and cause remanded. All concur.