Keith v. Arthur

Makshall, J. The delivery of plaintiffs’ claim to the as-signee constituted a written acceptance of the benefits of the trust. They had an election of remedies. Having exercised such election by accepting the obligation of the as-signee to administer the trust under the assignment for their benefit, they thereby waived any and all other remedies inconsistent therewith. This court has so frequently spoken on that subject that there is little, if anything, additional that can be said in regard to it. The principal cases where the matter has been considered are cited in the briefs of counsel. Littlejohn v. Turner, 73 Wis. 113; Lawson v. Stacy, 82 Wis. 303; Boynton Furnace Co. v. Sorensen, 80 Wis. 594. Where the waiver is made with knowledge of the facts, it works an estoppel and cannot be relieved against at all, any more than one can be relieved of the consequences of deliberately, with knowledge of the facts, entering into any other 192 contract in writing. But if the position of an accepting beneficiary be otherwise assumed by a creditor to his prejudice, it is unquestionably within the power of the court to relieve him from the situation on a proper showing sufficient to warrant it on some ground of equity; though if the application therefor be delayed till it would work injury to «others to grant it, whose condition in that regard may have been influenced by the conduct of the applicant, then it should be denied. Applying the foregoing to this case, it appears that a large number of creditors had filed their claims after plaintiffs filed theirs. There was a mutual interest on the part of all such creditors to sustain such assignment, and they probably were influenced more or less by the conduct of each other, in accepting the trust. There is nothing to show that plaintiffs made any effort whatever to inform them.selves in regard jfco their rights before filing their claim, while the means of knowledge was open to them. Under such circumstances, especially in view of the legislative and judicial policy of this state to sustain assignments, the court ■could not properly have relieved the plaintiffs from the acceptance of the trust, for the mere purpose of enabling them to seek a preference over other creditors by attacking the assignment, even if a proper application had been made in the assignment proceedings for such relief before the commencement of this action, which was not the case. The finding and judgment of the circuit court, that plaintiffs were estopped from the commencement and prosecution of the garnishee action by reason of their conduct in becoming parties to the assignment proceedings and remaining such for a considerable length of time, must be sustained. By the Court.— The judgment of the circuit courtis affirmed.