Bank of Lodi v. Washburn Electric Light & Power Co.

| Wis. | Mar 1, 1898

BardeeN, J.

The principal question on this appeal is whether respondent is bound by its election in suing the Bank of Washburn and A. C. Probert for money had and received for its use, upon the cause of action that it now sues appellant. It is a rule quite universal that where a party has a'choice between two inconsistent rights or remedies, and deliberately and with full knowledge makes his choice, such election becomes conclusive upon him and, precludes him from subsequently pursuing the other. Mariner v. M. & St. P. R. Co. 26 Wis. 84" court="Wis." date_filed="1870-06-15" href="https://app.midpage.ai/document/mariner-v-milwaukee--st-paul-railway-co-6600462?utm_source=webapp" opinion_id="6600462">26 Wis. 84; Warren v. Landry, 74 Wis. 144" court="Wis." date_filed="1889-04-25" href="https://app.midpage.ai/document/warren-v-landry-8183100?utm_source=webapp" opinion_id="8183100">74 Wis. 144; Crook v. First Nat. Bank, 83 Wis. 31" court="Wis." date_filed="1892-09-27" href="https://app.midpage.ai/document/crook-v-first-national-bank-of-baraboo-8184037?utm_source=webapp" opinion_id="8184037">83 Wis. 31. The attempt to apply this rule to the present case leads to the disclosure of the following' facts: The Bank of Washburn and Probert, ■defendants in tbe former case, were indorsers on the note involved in this suit, and as such were liable to respondent •either jointly or severally with appellant. Before it became due, it was sent to the Bank of Washburn for collection, and was taken by Probert, and returned to appellant without payment. The conduct of appellant’s secretary, when visited by respondent’s agent, was such as to lead the latter to'believe the note had- been paid. The former suit was instituted on the mistaken assumption that the note had been paid, and without knowledge of the true situation. The appellant is certainly somewhat to blame for this deception. A party is never bound by the election of a remedy, made in 'ignorance of substantial facts, which, if known, might proffer an alternative suit. 1 Ency. of PI. & Pr. 366. And especially is this true when he is deceived or misled by tiie conduct of the party seeking to take advantage of the election.

It is not perceived how the rights of the appellant were in any way affected by the institution of the suit against the Bank of Washburn and Probert. All of the parties were under legal obligation to pay the amount of this note to respondent at the time of the institution of the first suit. A judgment against one would have been no bar to a judgment against the other. The mere fact that execution was issued and the attached property sold, after respondent be■came informed of the true situation, under the circumstances ■of this case, cannot be held to operate as an election to appellant’s prejudice. Whatever was realized upon that judgment was really to its benefit. So long as the right existed for respondent to maintain an action against the Bank of Washburn and Probert, indorsers, and against appellant as maker of the note, it is difficult to see how the doctrine of ■ election of remedies can be invoked in this case. There was nothing in the situation to lead respondent to believe that the relation of appellant to the Bank of Washburn was that of accommodation maker of the note. Indeed, every reasonable intendment from the situation 'would seem to lead to the contrary. The form of the note and its renewal would naturally suggest that it was one made in the regular course of business. . The conduct of appellant’s secretary, after being informed of all the facts, was sufficient to induce the belief that the note had been paid, and it ought not now to be permitted to take advantage of its own wrong.

For these reasons the judgment of the trial court was right.

By the Court.— The judgment of the circuit court is affirmed.