110 Wis. 80 | Wis. | 1901
The first point made by appellant, that is deemed sufficiently important to be worthy of consideration, is that plaintiff, having elected to sue upon the contract when a way was open to treat it as at an end and to take the property in controversy, was legally bound thereby, and that the trial court should have so held by dismissing this action. The rule is quite familiar that a person cannot have the benefit of two inconsistent remedies or causes of action; that when there are such, either of which will remedy the wrong against him, the choice of one forever waives the other. Many applications of that have been made by this court. Warren v. Landry, 74 Wis. 144; Crook v. First Nat. Bank, 83 Wis. 31; Bank of Lodi v. Washburn E. L. & P. Co. 98 Wis. 547; Carroll v. Fethers, 102 Wis. 436. It was very recently quite thoroughly discussed in Barth v. Loeffelholtz, 108 Wis. 562. Does that rule apply where a person, supposing he has two causes of action for the satisfaction of his claim, when he in fact has but one, sues upon the supposed cause which has no existence, and is defeated on that ground? Is he under such circumstances precluded from suing upon the only cause of action which he in fact had? The proposition of appellant’s counsel is that, because plaintiff sued upon the contract, supposing it had a cause of action thereon, and was defeated because the contract had been rightfully rescinded by defendant’s predecessor, leav
The same seemingly unreasonable application of the rule, as regards the effects of an election between inconsistent remedies, as that contended for here, has been several times insisted upon in other courts, as appears from reported cases, and always unsuccessfully. In Morris v. Rexford, 18 N. Y. 552, the circumstances were that plaintiff sold a quantity of oats to the defendant, payment therefor to be made on delivery. The delivery was made but the purchase price was not paid. After some delay the plaintiff endeavored to rescind the sale contract and brought replevin. Subsequently he sued for the purchase price óf the oats. On the trial it did not appear that recovery was had in the replevin action or what had become of the same. The court held that the mere commencement of the replevin action did not necessarily preclude plaintiff from prosecuting the action on the .sale contract; that whether there was an election of remedies within the meaning of the rule on that subject depended upon whether the plaintiff had in fact two remedies; that if .he had but one, the pursuit of one that he did not possess would not bar him from subsequently resorting to the one which he did possess. In Kinney v. Kiernan, 49 N. Y. 164, the court stated the rule in these words: “ The institution .by a party of a fruitless action, which he has not the right
“ An action brought for the conversion of personal property, wherein it was successfully maintained by the defendant that the title to the personal property alleged to have been converted was in him and in which judgment was rendered in his favor is not a bar to a subsequent action between the same parties brought to recover damages for breach of the contract of- the sale of such property.”
In reaching such conclusion the court used the following language as to the contention of the losing party:
“The defendants, by their contention, succeeded in establishing that there had been an absolute sale, and that, therefore, the plaintiff had mistaken her remedy, and they cannot now set up the judgment which they then obtained to prevent the plaintiff recovering the purchase price of the property which they formerly urged and established was sold to them by her, and which it is conceded they have not paid for, and thus not only retain the property, but also the purchase price.”
To the same effect are In re Van Norman, 41 Minn. 494; Gould v. Blodgett, 61 N. H. 115.
In applying the rule as regards the effect of a choice between two inconsistent remedies or causes of action, it must be kept in mind that there must be two such remedies or causes of action, in fact, before a choice can be made within the meaning of the rule. A misconception of remedies should not be mistaken for an election between inconsistent remedies. Here there was no remedy upon the contract. Mrs. Shurts recovered of plaintiff upon that ground. Such recovery effectively answers the suggestion that the resort to the supposed remedy stands in the way of insisting upon the only remedy plaintiff had. Hot only is plaintiff not bound as having made an election of one of two inconsist
So, as between Mrs. Shurts and respondent, the heating plant is personal property, notwithstanding its physical annexation to the building it was designed to heat. The plant was not simply set up in Mrs. Shurts’s building on trial. It was actually sold and delivered to her and placed in her building to remain there as an improvement thereof, subject to the guaranty of its efficiency. The parties were competent to preserve its character as personalty, between themselves. That does not admit of a question. Smith v. Waggoner, 50 Wis. 155; Fitzgerald v. Anderson, 81 Wis. 341; Keefe v. Furlong, 96 Wis. 219. They accomplished that, though the relations of vendor and vendee between them were not severed by-resorting to the contract in that regard, but by the use by Mrs. Shurts of her remedy for the breach of warranty.
Did the heating plant become a fixture as to the mortgagee ? That is the important question. That there was an intent on the part of respondent and Mrs. Shurts that it should be incorporated into and made a part of the building, subject to the right of the former to reclaim the same in case of inability to make the apparatus do the work guaranteed, is unquestioned. As before indicated, the contract of sale contemplated physical annexation of the plant to and incorporation of it with the building it was designed to heat as a permanent improvement thereof, reserving the right to remove it as a mere security against losing the property as well as the pay for it if it failed to satisfy the war
In Clary v. Owen, 15 Gray, 522, the Massachusetts court, speaking by Mr. Justice Hoae, said:
“We think it is not in the power of the mortgagor, by any agreement made with a third person after the execution of the mortgage, to give to such person the right to hold anything to be attached to the freehold, which as between mortgagor and mortgagee would become a part of the realty.”
In Meagher v. Hayes, 152 Mass. 228, the same court said that a building put on mortgaged land and annexed to it in the usual way, without the mortgagee being a party to the transaction, became a part of the mortgage security notwithstanding an agreement between the owner of the building and the mortgagor that it should remain personal property with the right of such owner to remove it, and that the purchaser of the land at the foreclosure sale became the owner of such building, though he bought with notice of such agreement. In Hawkins v. Hersey, 86 Me. 394, the supreme court of Maine, speaking by Mr. Justice Whitehouse, said:
“ When machinery is sold and placed in a building for the purpose of making it available as a manufactory and permanently increasing its value for occupation, an agreement*88 between, the seller and buyer that the title shall remain in the former until it is wholly paid for, will not bind or affect the mortgagee of the realty without notice, and such machinery will pass to the mortgagee as a part of the realty.”
On the other hand, in German S. & L. Soc. v. Weber, 16 Wash. 95, the supreme court of Washington said that material sold and used in the construction of a building located upon mortgaged real estate, under an agreement with the mortgagor that the seller shall retain the title to such material till paid for, with the right to remove the same in case of nonpayment, does not become a part of the building and realty so that the mortgage lien will attach thereto as against the seller, if such material can be removed from the building without injury thereto. Similar language was used by the Minnesota court in Northwestern M. L. Ins. Co. v. George, 77 Minn. 319, where it was held that an apparatus, which formed a necessary part of a cold-storage plant and was attached to the storage building subsequent to the execution of a mortgage thereon, under an agreement between the vendor of the apparatus and the mortgagor that the former should retain the title thereto till it should be paid for, and have the right to remove the same in case of default, did not become a part of the mortgaged realty, but remained personal property during the existence of the condition, as against both mortgagor and mortgagee, since its removal from the building to which it was attached was shown to be practical without injuring such building or the value of the mortgage security as it existed before the apparatus was placed therein. The other cases cited to that doctrine are to the same effect. Probably the leading case on the subject is Campbell v. Roddy, 44 N. J. Eq. 244, where the two doctrines are discussed at great length.
The rule that a contract between a mortgagor of real estate and his vendor of chattels, to be and which are actually wrought into such real estate as an improvement thereof,
It seems that this court adopted the so-called Massachusetts rule at a very early day, in Frankland v. Moulton, 5 Wis. 1, where the opinion was delivered by Chief Justice Whiton, citing Winslow v. Merchants Ins. Co. 4 Met. 306; Corliss v. McLagin, 29 Me. 115; and Butler v. Page, 7 Met. 40. The circumstances in the Frcmldand Case were that ma chinery was sold to the owner of the real property while it was incumbered by an equitable mortgage, to be attached to such realty as an improvement thereof, the vendor of the machinery retaining a chattel-mortgage interest therein to secure the payment of the purchase money. It was held that the chattel mortgage was wholly inoperative as against the holder of the equitable mortgage; that the agreement between the chattel mortgagee and mortgagor, preserving the chattel character of the machinery after it was physically attached to and had become an appropriate improvement of the building in which it was located, was effective only between the parties to such mortgage. In Kendall Mfg. Co. v. Rundle, 78 Wis. 150, a chattel mortgage was taken, by the vendor of a heating plant set up in a building, to secure the purchase money of such plant, and it was held that the chattel mortgage was not effective to preserve the chattel character of the heating plant as against prior lien claims upon the property. The very opposite was held in Campbell v. Roddy, 44 N. J. Eq. 244, the leading New Jersey case to which we have referred, where several Massa
The judicial policy of this state having been established for nearly half a century, as indicated, it is considered that we are not permitted to question it now. The opposite doctrine may be the most equitable. It is probably supported by the greater weight of authority if that is to be determined by the number of decisions. Possibly it may be by the better reasoning, though the indications, it is believed, from a study of the numerous cases that have dealt with the subject in recent years, are that it has been losing rather than gaining ground. The tendency of courts is to-fence it within as narrow limits as practicable. For example, in McFadden v. Allen, 134 N. Y. 489, decided in 1892, the Massachusetts rule, so called, was adopted in its entirety, with the possible exception of where an interest in the accession to realty is reserved as security for purchase-money. In all other cases it was distinctly said that a contract between a mortgagor and a third person, preserving-the chattel character of property added to real estatq as-an improvement thereof during the life of the mortgage thereon, is ineffective as against the mortgagee unless he is-a party to the transaction; and that the question of whether it can or cannot be removed without injury to the realty is-immaterial. What reason there is for saying that a contract between a vendor of chattels and a mortgagor of real estate, in regard to the character of the former after being incorporated into the latter, shall be binding on the mort
“ The lien of the mortgagee covers all that was realty when he accepted the security, and all accessions to the realty except when, by a valid agreement to which he is a party, the character of chattels is impressed upon them.”
The invalidity of a contract between a mortgagor of realty and his vendor of chattels to be annexed and which are annexed to the mortgaged property, preserving the chattel character of the accessions, has been recently repeatedly maintained by the federal courts. Phœnix I. W. Co. v. New York S. & T. Co. 83 Fed. Rep. 757; Porter v. Pittsburg B. S. Co. 120 U. S. 649; S. C. 122 U. S. 283.
In a New Jersey case decided in 1898,— General E. Co. v. Transit E. Co. 57 N. J. Eq. 460,— a conclusion was reached contrary to that of the federal supreme court in the case last above cited, such court’s decision being vigorously attacked as promulgating an unsound doctrine. The difficulty is that the judicial policy of the federal court, indicated in the several cases cited, and the other courts that are in harmony therewith, is one way, while that of the New Jersey court and others in harmony with its policy is the other. Each court having adopted a policy for its jurisdiction, for it that policy is the proper one and the opposite policy is unsound. An expression in Phœnix I. W. Co. v. New York S. & T. Co. may be cited as indicating clearly that, where the doctrine prevails that the vendor of chattels to be attached to real estate cannot control their character after the accession is made, as against the mortgagee of the realty,
Walker v. Grand Rapids F. M. Co. 70 Wis. 92, is cited to our attention by respondent’s counsel with confidence, but we think it has no application to the facts of this case. There an apparatus for a gristmill was consigned by the manufacturer to a contractor who was engaged in building over the mill for the owner, with permission to set it up for trial. There was no sale, conditional or otherwise. The owner of the apparatus did not part with the title or have any intention of adding the apparatus to the mill as a permanent improvement thereof, conditional or otherwise. If there had been no sale of the heating plant in question, conditional or otherwise, but a mere permission obtained of Mrs. Shurts to set it up in her house and test it, there would be some analogy between this case and Walker v. Grand Rapids F. M. Co. Whether it could be removed under such circumstances might depend upon whether the removal would materially injure the building to which it was attached. The trouble is that it was actually sold and delivered to Mrs. Shurts. The title thereto passed to her. She afterwards divested herself of the title as between herself and respondent, by rescinding the sale contract for breach of warranty, as before indicated.
There appears to be no legitimate way open to us to decide otherwise than that the trial court adopted the wrong doctrine in reaching a conclusion in this case. It was made to turn upon two facts: first, the heating plant is personal property as between the mortgagor and respondent because of the contract between them; second, it is of the same char
By the Court.— The judgment is reversed, and the cause remanded with directions to render judgment in defendant’s favor for costs.