144 Mass. 85 | Mass. | 1887
It is admitted that the defendant, being the treasurer of the plaintiff corporation and also of the National Color Printing Company, misappropriated the funds of the plaintiff, and, without authority, lent them to the last-named company. The plaintiff afterwards sued the National Color Printing Company; and the defendant contends that this was a ratification of his acts, and discharged him from responsibility. The form of the suit is not stated, except that it was an action of contract. It may have been an action for money had and received, in which the plaintiff went upon the ground that the
But, even if the defendant had taken notes of the National Color Printing Company payable to the plaintiff, and the suit was upon such notes, we do not think that it would necessarily operate to discharge the defendant from his liability. It may be that the National Color Printing Company would have the right to insist that bringing the suit was, as to itself, a ratification of the loan, or an election between two remedies. If it could so insist, it must be upon the ground that the plaintiff had an election between two inconsistent remedies, and that the choice of one precluded it from using the other. Thus, if an agent unlawfully sells goods of his principal, the latter has an election either to sue for the goods upon the contract made by the agent, or he may repudiate the sale and bring an action of trover. Having elected one, he cannot resort to the other, because they are inconsistent and repugnant. Butler v. Hildreth, 5 Met. 49. But this principle does not apply where a man has the right to resort to two parties by remedies which are not inconsistent.
Take the case before us. The plaintiff discovers that its treasurer has misused its money, and wrongfully lent it. Why may it not properly say to him, We hold you responsible for this misuse : we will reduce our damage by recovering what we can from the borrower, but shall look to you for indemnity for such damage as we finally sustain from your misconduct? This is all that bringing a suit against the borrower, in whatever form, necessarily says or implies. There is nothing inconsistent in the two positions; there is nothing in the nature or the justice of the case which should preclude the principal from pursuing .this course, which is for the interest of the agent. To hold that bringing a suit under such circumstances not only ratifies the loan, so far as the borrower is concerned, but condones the of-fence of the agent and relieves him from all liability, would be carrying the doctrine of implied ratification to an unreasonable and unjust extent.
We are of opinion that this did not operate to discharge the defendant. The plaintiff gave him and his sureties a reasonable opportunityto intervene in the suit, and to protect their rights by prosecuting it, if the offer of compromise was not sufficient. The plaintiff settled the suit in good faith, believing that the sum offered was more than could be realized by prosecuting the action ; there is no evidence in the case that this belief was not well founded. It has done all that could fairly be required of it; the defendant has no ground of complaint, there being no proof that the amount realized was not as much as could have been obtained by further litigation. If the effect of the settlement is to bar any claim by him against the National Color Printing Company, which we need not discuss, it is his own fault, for which the plaintiff should not suffer.
Judgment affirmed.