102 P. 325 | Mont. | 1909
delivered the opinion of the court.
On December 22, 1903, the Madison Livestock Company entered into a contract with the defendants for the conditional sale by the plaintiff company to the defendants of certain cattle, borses and harness. The contract provides that the cattle should be paid for at the rate of $32.50 per head; that the plaintiff should furnish certain supplies and money; that defendants should have possession of the property; that payment should be made by defendants in five years; and that the title to
1. It is insisted that the hay and pasturage furnished were furnished and the work done was done under the contract of December 22, 1903, and the defendants cannot recover anything therefor. Apparently the hay and pasturage were furnished, and the work was done under the contract in the first instance; and it is elementary that under the contract the defendant's are not entitled to recover. But it is alleged in the answer that the plaintiff wrongfully took the property from the possession of the defendants, and the jury so found in a special finding. The plaintiff insists that the defendants breached the contract, but the evidence upon that is conflicting, and the jury found against it upon that issue. But, assuming that plaintiff’s contention is correct, it then might have had any one of three remedies: (a) It might have treated the contract as rescinded or abrogated and have retaken the property; or (b) it might have retaken the property, but still treated the contract as in force but broken by the defendants, and brought an action for damages occasioned by the breach; or (c) it might have waived the breach and have insisted upon payment for the property. (8 Current Law, 1818; Williston on Sales, sec. 579; 1 Mechem on Sales, sec. 615.) Apparently the plaintiff, contending that the defendants had violated the contract, undertook to pursue the first of these remedies; but, having retaken the property wrongfully, as the jury found, what, if any, remedies were then available to defendants? The authorities are unanimous in holding that they might have successfully prosecuted an action in claim and delivery to recover the possession of the property. Since the jury found that the plaintiff’s act in retaking the property was wrongful, such retaking constituted a violation of the terms of the contract, and, such being the case, the defendants might
2. Was the plaintiff entitled to recover for the value of the stock which was not retaken ? It is insisted that the loss for the stock which died fell upon the purchasers. Whether it did or not is a much mooted question, but one which is not before us. As said above, if plaintiff deemed that the defendants had broken the contract, it had its election of remedies, and, having chosen the remedy which it would pursue, its choice became irrevocable. Upon the plainest principles of justice it cannot retake the property, renounce the contract, and at the same time insist upon payment under the contract. (Parke & Lacy Co. v. White River L. Co., 101 Cal. 37, 35 Pac. 442; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 Pac. 435.) The rule is stated in 15 Cyc. 262, as follows: “An election once made, with knowledge of the facts, between coexisting remedial rights which are inconsistent, is irrevocable and conclusive, irrespective of intent, and constitutes an absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with that
It is urged by counsel for appellant, in effect, that there is not any evidence to support the finding that the retaking of the property by the plaintiff was wrongful. The contract contains this provision: “Said parties of the second part further agree * * ° to make ample provisions for the care of said stock by erecting sheds, and providing food to the extent of 400 tons of hay annually.” Assuming, as we may, that by this provision it was intended that the defendants should annually make ample provision for caring for the property by providing sufficient feed for such portion of the year during which feeding would be necessary, and that 400 tons of hay were deemed sufficient for that purpose, it can hardly be urged that the mere fact that the defendants had only 235'to 250 tons of hay to feed from December 22, 1903, until the following spring, constituted a breach of the contract, which of itself warranted the plaintiff in retaking possession of the property. The provision above set forth must be interpreted in the light of conditions prevailing here. During one winter a very small quantity of feed might be sufficient, while during another 400 tons of hay might be inadequate. But, if the 235 or 250 tons of hay which defendants had was sufficient prop
We do not find any error in the record. The judgment is affirmed.
Affirmed.