delivered the opinion of the court:
The important question presented in this case for our decision is, did the trial court err in instructing the jury to find for the appellee? That the appellant exchanged his farm to Day & Co. for said stock оf merchandise in the utmost good faith, without notice of the chattel mortgage of appellee, and that he was in possession of the stock of merchandise at the time it was seized by appellee, cannot be questioned upon the evidence in this record. Neither can it be gainsaid that the chattel mortgage of appellee, as to appellant, was void at the time of the seizure of the stock of merchandise thereunder, as it had several weeks before such seizure expired, and was upon a changing stock of merchandise. The title of appellant, therefore, to said stock of merchandise at the time of its seizure by appellee was perfect, and he lawfully had the right to hold the same against Day & Co. or the appеllee, as the mortgagee or attaching creditor of Day & Co. This is not denied by appellee, but it is insisted the appellant had two remedies when the stock of merchandise was seized by it, viz.: to сonfirm the sale and hold the stock of merchandise, or to repudiate the sale and recover the land from Day & Co.; that said remedies were inconsistent with each other, and that he must immediately elect which he would pursue; that he could not pursue them both at the same time, and that he had elected to rescind the sale and recover the land by commencing the procеeding in the circuit court of Jasper county, Indiana, and that having made his election of remedies he is bound thereby, and cannot recover in this case even though his suit necessarily failed in Indianа, and that the court therefore properly instructed the jury to find in favor of appellee. We do not agree with such contention for two reasons:
First—The evidence of appellаnt, taken alone, clearly shows that at the time the stock was seized the attorney of appellee represented to him that the appellee had a valid chattel mortgagе upon the property for the sum of $9000, when in truth and in fact the mortgage which the appellee held upon the stock of merchandise had all been paid by Day & Co. but $1500, and had expired and was not a lien, as against appellant, upon said stock of merchandise at the time of its seizure by appellee, and that the appellant was induced to commence the proceeding in Indiana to annul the exchange and recover the farm by reason of the false representations of the representative of appellee, made with a view to inducе him to abandon the sale and attempt to recover the land. An election of remedies obtained by misrepresentation and fraud is not binding, (Butler v. Hildreth,
Secondly—The institution of а suit will not be held such a decisive act as to constitute a waiver of rights which would be inconsistent with the maintenance of such suit, (1) if the court in which the first action is brought has no jurisdiction to try the cause; (2) .if the сause of action is prematurely brought and is defeated for that reason; (3) if the suitor has in his first action mistaken his remedy and is defeated on that ground; or (4) if an action is commenced in ignorancе of material facts which proffer an alternative remedy, the knowledge of which is essential to an intelligent choice of procedure. 7 Ency. of Pl. & Pr. p. 365; Enterprise Soap Works v. Sayers,
The bill filed in the State of Indiana was basеd upon the theory that Day & Co. had conveyed the stock of merchandise to the appellant and warranted it to be free and clear of all encumbrances, when, as they well knew, it wаs encumbered by a valid chattel mortgage given by them to the appellee; that by virtue of said chattel mortgage the stock of merchandise had been seized and taken from his possessiоn by appellee, and that the consideration for the exchange of the farm had failed and he was entitled to a re-conveyance thereof. In order to maintain such bill it was necessary that the appellant show that said stock of merchandise was encumbered by said chattel mortgage and that it was a valid and subsisting lien upon the stock of merchandise as against him, and that thе title thereto had failed by reason of a seizure thereof by the appellee under said chattel mortgage. This proof the appellant could not make, as the chattel mortgage, as against him, was not a lien upon the stock of merchandise. He must therefore necessarily fail in the Indiana suit brought to recover the land. He had in that suit, therefore, mistaken his remedy, and the bringing of such suit did not bar his right to file and maintain his interplea in the attachment suit.
In McLaughlin v. Austin, supra, it is said (p. 491): “No rule is better settled than the proposition that one having the choice of two inconsistent remediеs is bound by an election, and that suit brought upon one precludes a subsequent resort to the other claim. Thus, one may waive a tort by bringing an action in assumpsit, or may lose his right to bring assumpsit by commencing аn action for the wrong committed. One may sometimes rescind a contract and assert title to property that he has parted with, or he may affirm the contract, but he cannot do both. Having еlected by bringing an action upon one theory, he has no right afterwards to sue upon the other. (Thompson v. Howard,
In Bunch v. Grave, supra, it is held: “She (the plaintiff) is not in the situation of a party who, having two inconsistent remedies, resorts to one, and is thereby cоncluded by her election. She had but one effectual legal or equitable remedy, and that was to have it adjudged that the decrees held by Grave were satisfied.”
In McNutt v. Hilkins,
We are of the opinion the court erred in peremptorily instructing the jury to find for the appellee. The judgments of the Appellate and circuit courts will therefore be reversed and the cause remanded to the circuit court for a new trial.
Reversed and remanded.