95 N.Y.S. 212 | N.Y. Sup. Ct. | 1905
The defendant moves to compel the plaintiffs to elect between the three causes of action set forth in the complaint, and to state upon which one they will rely. The first cause of action alleges, in substance, the sale and delivery under an express contract of 16,019 bags of sugar at an agreed price of $202,922.01, on which there is claimed a balance due of $11,307.59. The second cause of action alleges the sale and delivery of the same quantity of sugar of the same value, alleging such value, however, as the reasonable worth, instead of the agreed price, and claiming a balance due of exactly the same amount. The third cause of action alleges that the defendant came into possession of 1,019 bags of sugar belonging to the plaintiffs of the value of $11,307.59, the wrongful detention of the same, the plaintiffs’ election to waive the conversion and demand for payment of the aforesaid value as upon an implied contract, with the defendant’s refusal to pay the same and the plaintiffs’ damage in the amount named. On behalf of the defendant it is insisted that these causes of action are so inconsistent and repugnant as to embarrass justice, but I cannot agree in that view. The principal case relied upon (Mayo v. Knowlton, 134 N. Y. 250) is altogether different from the present. There an attempt was made to recover on two causes of action — one based on the theory of a rescission of the contract because of fraud and the recovery of the purchase price, while the second was based upon the theory of an affirmance of the contract by retention of the stock and a recovery of damages sustained by reason of false representations made in respect to value. It was there said (page 252): “ The two claims are based upon conflicting or inconsistent theories, and the plaintiff was not entitled to recover upon both. Six of the jurors might find in his favor upon the first, and against him on
Motion denied, with ten dollars costs.