127 N.Y. 34 | NY | 1891
The question arises whether the proceedings taken by the plaintiffs in the courts of New Jersey constituted an election of remedy inconsistent with that which they seek *37
to enforce by this action upon the note taken by them for a portion of the consideration of the sale of the goods, which was the subject of those proceedings in that state. Those proceedings were taken there with a view to the collection of the purchase-price of the goods sold, and such price is represented by the notes. The rule is well settled that when a party has elected to adopt and has pursued one of two inconsistent remedies he is not permitted to afterwards avail himself of the other. In Comyn's Digest "Election" it is said: "If a man once determines his election it shall be determined forever; as if an obligation delivered to the use of A. be refused when he is first informed of it, he cannot afterwards accept it." And the same author adds: "But where an election is of several remedies, if he chooses one, he may afterwards have the other in personal cases, as where he has election of several actions." It is the inconsistency of the remedy sought with that he has before adopted and pursued which determines the right of a party as between them. And this, as the consequence, is founded upon the principle that the other party may otherwise be in some manner prejudiced in respect to a defense or cause of action by the abandonment of the one and resort to the other of such remedies. But whether or not that is the effect is not the subject of inquiry. In the case where a party may resort either to an action upon contract or in tort, the election between them concludes him. And the question has more frequently arisen where a purchase of property is obtained by fraud. Then after the seller has elected to rescind the sale and has proceeded for the purpose of recovery of the property or for its conversion, he denies to himself the right to abandon that remedy and seek to recover in affirmance of the sale; and the effect is the same when his election is effectually made to prosecute for recovery of the purchase-money with knowledge of the fraud. He then has lost his right to rescind the sale and reclaim the property. (Moller v.Taska,
All concur.
Judgment reversed.