158 A. 803 | Conn. | 1932
This suit grew out of the transaction which was the basis of the action in Gerber Co., Inc.
v. First National Bank,
The plaintiff brought suit against the First National Bank to recover the proceeds of the sale of the cheese. In that action we held that as against the plaintiff the *380
Grain Corporation acquired title to the cheese as quasi-trustee for all its creditors, and that its receiver and trustee succeeded to the title and interest thus obtained; and that the bank was not a bona fide holder of the warehouse receipt and obtained no interest in the cheese thereby, but that the plaintiff, since it was not maintaining the action for all the creditors but only for itself, had no right of recovery against the bank. Gerber Co., Inc. v. First National Bank,supra. As indicated in that opinion the contract between the plaintiff and the Grain Corporation was, at the inception of the bankruptcy proceedings, an executory one which the receiver or the trustee might either renounce or assume. The receiver and trustee, having failed to take any affirmative action showing an intent to reject the contract, were held to have ratified it. Having thus assumed the contract, the trustee took itcum onere and was liable for the full purchase price.Gerber Co., Inc. v. First National Bank, supra, pp. 590, 591; Atchison, T. S. F. R. Co. v. Hurley, 153 F. 503 (
The defendant claims that the plaintiff, by proving its debt as a general claim in the bankruptcy proceedings, has waived its right subsequently to bring this action against the trustee, and the plaintiff, in reply, contends that there was no such waiver since the claim was filed "without prejudice to the right of claimant in reclamation proceedings." The parties have treated the plaintiff's claim as a provable debt, the plaintiff, by filing it as a general claim in the bankruptcy proceedings and the trustee by acquiescing in that action, and paying a dividend upon it, and we must therefore consider it from that standpoint. Whether the plaintiff, by its action in proving its claim as it did, waived its right to thereafter proceed against the trustee to recover the full purchase price of the cheese, is a question *381
of election of remedies. An actual or implied intent to elect is necessary to constitute an election between two remedies open to the litigant. The presentation of a general claim against a bankrupt estate is ordinarily regarded as inconsistent with the enforcement of any security held by the creditor, or of a right to repossess specific property under a claim of title. It is therefore held that the creditor, by proving a general claim in the bankruptcy proceedings, waives any security he may have and, having made an election of remedies, may not recover the specific property in subsequent reclamation proceedings. AmericanWoolen Co. v. Maaget,
There is no error.
In this opinion the other judges concurred.