48 So. 178 | Miss. | 1908
delivered the opinion of the court.
The peremptory instruction in this case was manifestly based upon the theory that Dr. Murphy, being free to sue either Mrs. Hutchinson, the principal, or W. N. Hutchinson, the agent, elected to hold the principal, and, having prosecuted a suit against Mrs. Hutchinson to final judgment, was estopped to proceed against the agent, though unsuccessful in the first action. This question involves the doctrine of election of remedies, a subject on which there is considerable conflict in the authorities.
It should be stated that in this case Dr. Murphy testifies that at the time the medical services were rendered he had no-knowledge that W. N. Hutchinson was 'acting as his mother’s agent, but that the credit was extended to Hutchinson as the-principal debtor. This accounts for the admitted fact that the account was charged to Hutchinson, and, of course, since Dr. Murphy was dealing with the agent of an undisclosed principal,, the ‘agent could be held to personal liability if the creditor so>
Dr. Murphy was defeated in this suit, there being an adverse verdict of the jury in the justice’s court. We have no possible way of' knowing what considerations were influential with the jury; but, giving effect to all the presumptions that the law attaches to the action of every court, the plaintiff could not have been defeated because he had sued the wrong party, since the agency of W. N. Hutchinson was admitted, and there can be no dispute as to the principal’s liability for the contracts of the agent, made in reference to the business which the agent was employed to perform. The presumption must therefore be indulged that Dr. Murphy was defeated in his suit because the jury was not satisfied as to the merit of plaintiff’s demand, considered entirely apart from any question of which party was the responsible one. After this first suit was finally disposed of, Dr. Murphy brings a second suit upon the identical account litigated in the first action, but against W. N. Hutchinson, the
We are fully aware of tbe fact that our own court has been slow to give effect to tbe doctrine, elsewhere widely accepted, that a person with an unredressed grievance, and with two inconsistent courses open to him, will be held to have finally abandoned one of these courses merely because be has entered upon another. Tbe doctrine, so far as Mississippi is concerned, has been carefully limited and guarded. Perhaps tbe fullest consideration of tbe question to be found in our reports is found in tbe opinion of Judge Campbell in response to tbe suggestion of error in Madden v. Louisville, etc., R. Co., 66 Miss. 258, 6 South. 181. This opinion, although distinctly stating that while tbe doctrine of election is sound, and is to be recognized and applied by our courts in proper cases, yet it must not be applied when tbe party sought to be bound by tbe election acts without full knowledge of bis. legal rights as determined by tbe application of correct principles of law to a state of facts of which bebas full knowledge.. So in Conn v. Bernheimer, 67 Miss. 498, 7 South. 345, it was held that, because appellee bad mistakenly instituted an action of replevin in a case where that form of action would not lie, be was not precluded from prosecuting a proper action in another forum. So in Tucker v. Wilson, 68 Miss. 693, 9 South. 898, tbe doctrine was not applied, for tbe manifest reason that complainants in their first suit bad no proper conception of tbe course best adapted to preserve their rights. These cases do not purport to deny tbe application of tbe doctrine to proper cases, but do so limit and restrict its application that it can prevail only when tbe electing party acts with full knowledge of bis rights.
Coming to the American cases, we do not find that they are in such complete accord as in England. But we think most of the authorities, holding that there can be no final election in the case of principal and agent unless judgment has actually been obtained and satisfied are based on the case of Beymer v. Bonsall, 79 Pa. 298. But the opinion in this case does not undertake to cite any authority or give any reason for the rule, contenting itself with the bare announcement that the agent can escape liability only by satisfying the demand. This case was referred to in Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51, a case, however, where the only point actually decided was that the commencement of an action does not sufficiently show an election. To the same effect is Nason v. Cockroft, 3 Duer (N. Y.) 368, 369. But the view of the New York court, upon
Not to multiply citations, we reach the conclusion that the-correct rule is summed up in the note to Fowler v. Bowery Savings Bank, 10 Am. St. Rep. at page 494, where, after mentioning Beymer v. Bonsall, supra, and other cases in line therewith, it is stated: “In regard to this latter line of authorities, it maybe observed that while the mere institution of an action should plainly not conclusively determine one’s election, in the case of principal or agent, yet if the action is commenced with full knowledge of one’s rights, or any other case against the agent, it should be a bar to a subsequent action against the principal,, and vice versa; for by suing the agent the third person disaffirms
We have not undertaken to explore the entire field of cases dealing with the doctrine of election of remedies, but have confined our observations, though not our research, to authorities dealing with the application of the doctrine to the precise point under consideration, which has to do with the law of principal and agent. Nor have we taken notice of cases like Maple v. Cincinnati, etc., R. Co., 40 Ohio St. 313, 48 Am. Rep. 685, which deals essentially with actions against principal and agent,, and who are also joint tort-feasors; the action being in substance one of tort. Bearing in mind the undisputed fact that the first action against Mrs. Hutchinson was brought with full knowledge of all the material facts and after correct advice as to the law, we conclude that the appellant, having made his election and had his day in court, cannot retry the same facts in an independent suit against the agent upon the identical issues before litigated, and that the learned judge below correctly gave the peremptory charge for the defendant.
Affirmed.