Johnson-Brinkman Commission Co. v. Missouri Pacific Railway Co.

Gill, J. I. From the foregoing statement it will be seen that, on September 1, 1890, the plaintiff sold this wheat to the Imboden Company, and that the purchaser failed to pay therefor on delivery- as was agreed; that, thereupon, plaintiff sued the Imboden Company for the purchase price and attached the same and other property. Eight days thereafter (that is, September 9) the plaintiff dismissed the attachment suit, and brought this action in replevin for the recovery of the same goods. Under these circumstances the circuit court held that the institution of the attachment suit on September 1, and levy on the wheat by plaintiff’s direction, amounted to an irrevocable election to confirm the sale to the Imboden Company, and, therefore, precluded a subsequent resort to this action to reclaim the same. That ruling, whether correct or not, is the matter for our determination. The decision of the trial court was, as we think, clearly within the law, and its judgment will be affirmed. We find in a case from Massachusetts the law thus fairly and correctly stated: “The defense of waiver by election arises when the remedies are inconsistent; as when one action is founded on an affirmance, and the other upon a disaffirmance of a voidable contract or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, [414] determines the legal rights of the parties, once for all. The institution of a suit is such decisive act; and, if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon.” Connihan v. Thompson, 111 Mass. 272. This doctrine is fully sustained by the decided cases and text-writers. Consult the following, among others: Crossman v. Rubber Co., 127 N. Y. 37; Bach v. Tuch, 126 N. Y. 56, et seq.; Terry v. Munger, 121 N. Y. 164, et seq.; Conrow v. Little, 115 N. Y. 393; Moller v. Tuska, 87 N. Y. 166; Morris v. Rexford, 18 N. Y. 552-557; O’Donald v. Constant, 82 Ind. 212; Butler v. Hildreth, 5 Met. (Mass.) 49; Lehman v. Van Winkle, 92 Ala. 443; Thompson v. Howard, 31 Mich. 309; Carter v. Smith, 23 Wis. 499; McLean v. Clapp, 141 U. S. 432; Nanson v. Jacob, 93 Mo. 331; Taylor v. Short, 107 Mo. 384; Bigelow on Estoppel [5 Ed.] ch. 21; 2 Herman on Estoppel, sec. 1045; Benjamin on Sales, sec. 442. The evidence here unquestionably shows that on the afternoon of September 1 the plaintiff knew all the material facts which gave it the right to rescind the sale to Imboden and reclaim the wheat; for in its attachment affidavit it sets out the very ground that gave it the right to declare the contract off and retake the property. Imboden had agreed to pay for the wheat on delivery, but had failed to do so, and plaintiff, of course, knew it. The plaintiff also knew that the wheat was then equally in the reach of attachment or replevin. And it is quite, too, as certain that the plaintiff then had knowledge of the insolvency of the Imboden Company. The knowledge of this one fact (to-wit, that Imboden had not paid for the wheat on delivery as was agreed) opened to the [415] plaintiff alternative rights or remedies, that is, to affirm the sale and sue in attachment for the purchase price, or disaffirm the sale and replevin the wheat. These were clearly inconsistent rights or remedies, not concurrent. In the attachment suit for the price of the goods, the plaintiff, in the most formal manner, declared the wheat to be the property of Imboden, and thereby affirmed the contract, but, by the prosecution of the subsequent replevin, the contract of sale was repudiated. Plaintiff had the option to pursue the one or the other course — to affirm or disaffirm — but not the right to pursue both remedies. He cannot be allowed to approbate and reprobate at the same time. Having made a choice (with full knowledge of all the facts), the law will compel the plaintiff to abide by it. It is well settled that if the vendor has been defrauded in the sale of his goods, and subsequently comes to the knowledge of such facts as would authorize a rescission, he must act at once on the discovery of the facts. His silence even will be construed a ratification or affirmance. How much more, then, should it be regarded as a ratification if the vendor, with a knowledge of the facts, sue for the contract price and levy an attachment on the identical goods sold. “This,” says Judge Shaw, in Butler v. Hildreth, supra, “is a significant act, an unequivocal assertion that he does not impeach the sale, but, by necessary implication, affirms it.” “Where a party takes legal steps to enforce a contract, this is a conclusive election not to rescind on account of anything then known to him.” Conrow v. Little, supra. But it seems contended that plaintiff should not be barred of this action, since it is not shown that anyone was harmed by the subsequent repudiation of a former election. But, as said by Judge Peckham, in Terry v. Munyer, supra: “When it becomes necessary [416] to choose between inconsistent rights and remedies, the election will be final, and cannot be reconsidered, even where no injury has been dcine by the choice, or would result from setting it aside.” To same effect see also 2 Herman on Estoppel, sec. 1045. The rule we are seeking here to enforce is not, correctly speaking, grounded upon equitable estoppel. It is upon the principle that the plaintiff, by its own free act and choice, decided to sell the property, and, having done so, it necessarily follows that it has no right to replevin the same. Nor is it necessary that the former action should have been prosecuted to judgment before a conclusive election can be claimed. Terry v. Munger, supra. At the trial below the plaintiff sought to save itself from the consequences of its election of remedies thus adopted by an attempt to prove that the attachment suit was hastily brought, and without deliberate consultation with its attorneys; that its manager, who directed the bringing of the attachment, did not understand his legal rights, and that he misconceived his remedy, etc. The court properly declined any such excuse. In addition to the application of the maxim, Ignorantia legis neminem excusat, the facts are such that plaintiff ought not to be heard to make such a claim. Johnson (the plaintiff company’s manager) went on September 1 to his lawyer’s office, complaining that the Imboden Company had the possession of wheat which it had bought and agreed to pay for on delivery, but had not done so, and ordered attachment papers prepared. All the facts necessary to a complete understanding of the case were then before the attorney and his client, and they, deliberately, though in some haste, brought the suit. And, more than this, eight days were permitted to run before any change in the remedy was sought; and during this eight days (to-wit, [417] on September 4 and September 8) plaintiff gave orders to and did release certain other goods from the attachment levy, showing that during the eight days, and until the ninth, it was in the mind of the plaintiff to prosecute the action by attachment for the purchase money. But both actions, it would seem, were equally available, if not equally effective. As said by defendant’s counsel, if the wheat was sold for cash on delivery, then, upon default of payment the seller had a clear right to either of the two remedies, to-wit: To affirm the sale and sue in attachment for the purchase money, or revoke the sale and sue in replevin for the recovery of the specific article sold. We hold, then, with the trial court, that the plaintiff, in the case at bar, had the option to ratify or rescind the sale in question, and, having elected to ratify, with knowledge of the material facts, plaintiff is precluded from maintaining this subsequent action of replevin, which was based on a rescission of the sale. It was the institution of the attachment suit which settled for all time the character,of the transaction, and it was wholly immaterial whether that suit was prosecuted to judgment or dismissed beforehand; the legal effect was the same. We understand ourselves to be in accord with an overwhelming weight of authority, as shown by the numerous cases heretofore cited, but in conflict with the St. Louis Court of Appeals in Anchor Milling Co. v. Walsh, 20 Mo. App. 107, and Lapp v. Ryan, 23 Mo. App. 436. Complying then with the mandate of the constitution, we order the transfer of this cause to the supreme court. All concur.