Welsh v. Carder

BROADDUS, J. This is an action of replevin for the possession of certain personal property which the plaintiff claims as mortgagee by virtue of a certain mortgage executed by J. S. and S. T. Payne on the fourteenth day of January, 1901, and duly recorded. The mortgage was given to secure two promissory notes for $75 each, one due in six and the other due in twelve months, with a provision for attorney’s fees. The contest arose over the payment of the note due in six months. The defendant set up two defenses against the plaintiff’s right to recover: On the first, the court found against him; and as no complaint is made to the action of the court in that respect, we will confine our consideration to the action of the court on defendant’s second defense, which was in his favor. Said defense is as follows: “That defendant has since been informed and avers the fact to be that plaintiff had deposited said note with one J. M. Warnick, this being the first note secured by said chattel mortgage; that said note was deposited as collateral security; that said Warnick afterwards sold and transferred said note to Paynes, the payors therein; that after said Warnick had assigned said note, plaintiff instituted a suit before one Jesse Guffey, a justice of the peace of Putnam county, claiming that said Warnick had converted said note by transferring it to said Paynes and claiméd judgment for balance due on said note and judgment was duly rendered against said Warnick for $50 and costs, being balance due on said note, ’ ’ etc. Defendant claimed that by so electing to sue said [44] Warnick, plaintiff elected to affirm the conversion of said note, and that he ivas thereby estopped from recovery against defendant in this action. It appears from the statement of the parties that Warnick had sold plaintiff a cow for $25, and that plaintiff had transferred to Warnick the two notes in controversy as collateral security for payment of said sum; that after-wards the Paynes paid one of said notes to plaintiff, and that at the time judgment was rendered for plaintiff in said cause in the justice’s court, Warnick got credit for the $25, the price of the cow, and the judgment was for the balance of the note in the sum of $50, which has not been paid. The defendant purchased the mortgaged property in dispute from the Paynes. The plaintiff appealed from the action of the court in its finding against him on said second defense. The ground upon which the trial court founded its action was that the plaintiff, by electing as between one of two inconsistent remedies, is estopped from asserting the other. Or, in other words, by suing Warnick for the conversion, he affirmed the transaction as to the sale of said notes and thereby lost his remedy of replevin for the goods. The appellant contends that in pursuing his remedy against Warnick he is not estopped from recovery as he has not collected his said judgment; and in support of his said contention we are cited to the case of Lovejoy v. Murry, 3 Wall. (U. S. S. C.) 1, and to Johnson-Brinkman Com. Co. v. Railroad, 126 Mo. 344. The first case has no application whatever. In that case the plaintiff was seeking to recover from one joint trespasser after having pursued his remedy against another one of them, without having been able to collect his judgment. The court therein announced the familiar principle that the plaintiff had the right to pursue his remedy against any one .or all of the trespassers until he was compensated for his damages — the remedy being the same and the joint tres [45] passers alike being liable for the wrong. The second case had been certified to the Supreme Court from this court for the reason that it was in conflict with two decisions of the St. Louis Court of Appeals, viz.: Anchor Milling Co. v. Walsh, 20 Mo. App. 107, and Lapp v. Ryan, 23 Mo. App. 436. This court in said case having held as follows (52 Mo. App. 407) : “If plaintiff has an election between inconsistent remedies, as where one action is founded on an affirm-, anee and the other upon a disaffirmance of a voidable sale or contract, any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties once for all; and the institution of a suit is such decisive act. ’ ’ The facts of this latter case in short were, that the plaintiff had brought an attachment suit against the vendee, which he afterwards dismissed and then resorted to his action of replevin. This court having held that the bringing the attachment suit with knowledge of the facts was an election of remedies, and that plaintiff was thereby estopped from prosecuting his writ of replevin as to the goods. The facts in Anchor Milling Co. v. Walsh, supra, were somewhat similar, the plaintiff having instituted an attachment suit which it dismissed and then instituted a suit in replevin. It was held that it was not estopped thereby, as the plaintiff had not proceeded to a judgment, and for that reason it was not an estoppel of record. The court then proceeds to argue that the facts did not show that it was an estoppel in pais. In Lapp v. Ryan, supra, the same principle was reannounced. And in Johnson-Brinkman v. Railway, supra, the Supreme Court held that this court was in error, and took the same view of the law as that held by the St. Louis Court of Appeals. But the question ag’ain came before this court in Dry Goods Co. v. Warden, which was certified to the Supreme Court and reported in 151 Mo. 578. This court held, in an opinion by Judge Gill: “A creditor who has sold goods to an [46] insolvent merchant can not have his claim for the value of the goods allowed by the assignee, after having repudiated the sale for fraud and replevied and sold the goods, the replevin suit still pending at the time the claim is presented to the assignee. He has his election of two remedies, either to affirm the sale and rely on the allowance of the entire amount by the assignee, or to repudiate the sale and recover the goods in replevin, but he can not have both at the same time. ’ ’ This opinion was 'upheld by the Supreme Court, and as not in conflict with the rule of law adopted in Johnson-Brinkman v. Railway, supra. While this is true as interpreted by the Supreme Court, both are really in conflict with the reason given in the opinion' in ,the Anchor Milling Co. case, supra, for the conclusions reached therein. But whatever may be the apparent inconsistent views in the appellate courts of the State upon the question under consideration, they are all in harmony with the theory upon which this ease was decided by the trial judge. The plaintiff elected in the first place to sue Warnick for a conversion of the notes held by him in pledge; prosecuted the same to a judgment; and on the trial gave credit for the value of the cow he had purchased from said Warnick. By his action in so doing, he elected to affirm the sale of the notes by Warnick to the Paynes; and under all the authorities he is estopped from prosecuting this action. The cause is affirmed. All concur.