Boles v. Missouri Valley Elevator Co.

Evans, J. 1. Election oe remedies : non-inconsistent proceedings. The defendant was engaged in the business of buying grain. In December, 1911, it bought from Au-water 517 bushels of corn, and paid him therefor. Auwater was a tenant of the plaintiff’s, and had raised the corn upon the plaintiff’s farm. Auwater ivas indebted to the plaintiff for rent thereon, in a. much larger sum than the value of the corn in question. The fact of the purchase of the eorn is not disputed; neither is the quantity thereof, nor the price. Two defenses were interposed: (1) That Auwater was not in fact owing rent to the plaintiff, because the plaintiff was owing Auwater for work and labor done, in excess of the amount owing by Auwater; and that Auwater was authorized by the plaintiff to sell said corn and to pay himself with the proceeds thereof, in extinguishment of the indebtedness due him from the plaintiff. (2) That, after the alleged conversion, Auwater was adjudged a bankrupt, and that the plaintiff filed against him his claim for rent, and that he did not disclose therein any alleged claim for damages for conversion against this defendant. As to the first defense, there was no evidence to sustain the same, .and it may be disregarded. As to the second, it is the theory of the appellant that there is some inconsistency involved in the claim presented by plaintiff before the referee in bankruptcy for the rent due him from Au-water, and his present claim for damages from the defendant for the conversion of the corn. It was to the interest of the defendant that the plaintiff should pursue the bankrupt and obtain collection from him, if possible. If he had collected all of his rent from the bankrupt, it would have extinguished his claim for damages .for the conversion. He tried to do so, and failed. Thereupon, he brought this action against the defendant for damages for the conversion.. [519] His conduct was entirely consistent and clearly beneficial and not prejudicial to the defendant. 2' exclusiveness'of oiTank-1011 ruptey court. It is argued by the appellant, however, that the proceedings in bankruptcy operated as a bar to all proceedings in the state courts. That is true only as to proceedings against the bankrupt. The defendant was not the bankrupt. The plaintiff could not prosecute its action against him in the . bankruptcy court. The action was properly brought in the district court. Nor was it waived by plaintiff’s attempt to collect from the real debtor. The judgment below is — Affirmed. Preston, C. J., Ladd and Salinger, JJ., concur.