National Bank v. First National Bank

57 Kan. 115 | Kan. | 1896

The opinion of the court -was delivered by

Martin, C. J. :

It was held by this court in Plow Co. v. Rodgers, 53 Kan. 743, 749, in accordance with numerous authorities, that an election by a party of one of two inconsistent remedies, once fairly made with lcnowledge of the facts, is binding and conclusive, so that he cannot abandon it and choose the opposite remedy, and this case was cited and followed in City of Larned v. Jordan, 55 Kan. 124, 128, although it was held in that case that the party had not before made an election. The principle was well stated in Thompson v. Howard, 31 Mich. 309, 312, where the supreme court of Michigan said:

“A man may not take contradictory positions, and where he has a right to choose one of two methods of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.”

In the case now under consideration, the Illinois bank had the option of accepting the security of the chattel mortgage or rejecting it. In the latter case, it might bring suit and obtain an attachment on the ground that the chattel mortgage was fraudulent and void as to creditors. It chose 'that course, and for five years it litigated against the Emporia bank to defeat the claim of the latter under the chattel mortgage, and to obtain the entire proceéds of the. sale of the goods by means of its attachment suit. The chattel-mortgage security was not only repudiated, but made the ground for the writ of attachment. The respective remedies upon the chattel mortgage and the at tachment were therefore altogether inconsistent with each other, and the plaintiff, having taken and so long pursued its remedy by attachment, must be content with the result.

The plaintiff in error claims that a party who imagines that he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tried the wrong one, and cases are cited in support of this proposition; but we think it has no application to such a case as this. The case of In re Van Norman, 41 Minn. 494, appears, however, to go beyond this, and to decide that a creditor may contest the validity of a general assignment for the benefit of creditors, and, being defeated, may afterward prove up his claim and be entitled to distribution in the same manner as other creditors. There may be a distinction between an attack upon a general assignment and one upon a chattel mortgage expressly made for the benefit of the party who afterward attacks it, but, unless such distinction obtains, we could riot agree to the doctrine asserted by the supreme court of Minnesota.

The judgment of the court below will be affirmed.

All the Justices concurring.