115 P. 912 | Mont. | 1911
delivered the opinion of the court.
After this case was remanded for a new trial (see O’Meara v. McDermott, 40 Mont. 38, 104 Pac. 1049), the defendant amended his answer by pleading a former adjudication, predicated upon the judgment entered in favor of the defendants in the action brought by O ’Meara and Kerrigan against McDermott and wife for an accounting of the profits resulting from the sale of the mining claims mentioned in the former opinion of this court, as alleged partners of McDermott. The amended answer -also contains the allegation that by the commencement and prosecution of the so-called partnership action for an accounting, O’Meara elected to rely on his claim that he was a partner and to pursue such remedies as were open to him for the enforcement of that claim, and that, by reason of so electing, he is now estopped from prosecuting this action. The second trial resulted in another verdict against the defendant in the sum of $12,000. Judgment was entered accordingly, and appeals were taken from the judgment, and from an order denying a new trial.
1. Appellant’s contention that the judgment in the former action is a bar to the prosecution of this cause is untenable. The judgment and findings of fact made by the court disclose that
2. The court also instructed the jury as follows: “In order to make a note or other written obligation binding upon the party signing the same, it must not only be delivered to the payee or obligee, or to someone for him, but it must be accepted by him; that is, he must receive it into his possession intending to hold and enforce it against the payor or obligor pursuant to some precedent agreement in accordance with which it is delivered. If, accordingly, you find that the plaintiff on receiving from the defendant the instrument sued on, and acquainting himself with its contents, declined to accept it, and offered to return it to the defendant, and did not thereafter, and prior to bringing suit upon it, in some way signify to the defendant his acceptance of it pursuant to the agreement in accordance with which it was given to him, he cannot recover on it, and your verdict must be for the defendant.” It is now asserted in appellant’s brief that “the evidence clearly shows that the plaintiff abandoned the instrument in writing sued on in this action.” At the second trial the stenographers who reported the
3. It is contended that in electing to bring an action for an accounting as an alleged partner O’Meara estopped himself from afterward asserting that the note was given in payment for services rendered in any other capacity; and incidentally the
In the case of Thompson v. Howard, 31 Mich. 309, the court said: “A man may not take contradictory positions, and where he has a right to choose one of two modes 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 that case' the plaintiff’s son was enticed away by a neighbor, and the father brought suit for the value of his services on the basis of an implied contract. The jury disagreed, and he thereupon
In Warren v. Landry, 74 Wis. 144, 42 N. W. 247, Mr. Chief Justice Cassoday said: “The rule is universal that where a party has a choice between two inconsistent remedies or causes of action, and he deliberately adopts the one, such election becomes conclusive upon him and precludes him from subsequently adopting the other.” (See, also, Rowley v. Towsley, 53 Mich. 329, 19 N. W. 20; Bradley v. Brigham, 149 Mass. 141, 21 N. E. 301, 3 L. R. A. 507; Lamar v. Pearre, 90 Ga. 377, 17 S. E. 92; Bryan-Brown Shoe Co. v. Bloch, 52 Ark. 458, 12 S. W. 1073; Bank of Beloit v. Beale, 34 N. Y. 473; Sanger v. Wood, 3 Johns. Ch. (N. Y.) 416; Morris v. Rexford, 18 N. Y. 552; JohnsonBrinkman C. Co. v. Missouri Pac. Ry. Co., 52 Mo. App. 407; Nanson v. Jacob, 93 Mo. 331, 3 Am. St. Rep. 531, 6 S. W. 246; Long v. Long, 111 Mo. 12, 19 S. W. 537; Bauman v. Jaffray, 6 Tex. Civ. App. 489, 26 S. W. 260; Welch v. Seligman, 72 Hun, 138, 25 N. Y. Supp. 363.) The foregoing cases are all more or less in point as illustrative of the rule above quoted from” Michigan and Wisconsin, and are relied on by the appellant. It will be found on examination, however, that each decision is predicated upon a situation wherein the plaintiff had choice of remedies for the same act or omission of the defendant, as, for instance, where he ratified a fraudulent sale of his goods by bringing action for their value, or where he elected to sue in trespass rather than in assumpsit, and like cases.
The case principally relied on by the appellant, however, is Sacker v. Marcus, 43 Misc. Rep. 8, 86 N. Y. Supp. 83. In that ease an action was brought to recover a sum of money for breach of a contract of employment and the wrongful discharge of plaintiff from the employ of the defendant. The answer, besides a general denial, contained an allegation that the plaintiff had begun another action, which was still pending upon the same contract, declaring that it was a contract of partnership,
The facts in this ease are somewhat peculiar. In the action based upon an alleged partnership agreement, the complaint contained the following averment: “That he [McDermott] has refused to make any account, though he has acknowledged in writing and agreed to pay the plaintiff O’Meara the sum of $12,000, when the payments shall be made by Galiger & Clymo, but he has not agreed to pay Kerrigan anything.” Either one
The doctrine of election of remedies is conceived to be founded in the very just idea that a party ought not to be needlessly harassed with litigation. But a person who prosecutes an action or suit based upon a remedial right which he erroneously supposes he has, and is defeated because of the error, has not
The rule as to conclusiveness of election “is not inconsistent with the practice of bringing a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had.” (McLaughlin v. Austin, 104 Mich. 489, 62 N. W. 719. See, also, Agar v. Winslow, 123 Cal. 587, 69 Am. St. Rep. 84, 56 Pac. 422.) And so in this case the plaintiff first brought his action for an accounting, alleging that he was a partner of the defendant. As evidence that some amount was due him, he pleaded and produced the note now in suit. The court found that no partnership existed, but that the note was given as evidence of an indebtedness arising out of a contract of employment. Having prevailed in that case solely on account of the fact that plaintiff mistook his remedy, the defendant is not now in a position to urge that the plaintiff has no right to have a competent court try the question whether anything is due under the contract of employment.
This court, in Kaufman v. Cooper, 39 Mont. 146, 101 Pac. 969, said: “There is a rule of law well established which is that if a person prosecute an action based upon a remedial right which he erroneously supposed he had, but which in fact he did not have, and he is defeated because of his error, he will not be held to have made an election of remedies, and will not be precluded from asserting one which he has, even though it be inconsistent with that which he supposed he had but did not have. A review of the history of the first case (Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, 1135) convinces us that in that instance Kaufman merely made a mistake as to the remedy
We think the district court was correct in holding that O ’Meara was not estopped as a matter of law.
4. But it is said that the court erred in refusing to charge the jury that if the note was given pursuant to an agreement between the parties, whereby they sought to adjust and settle any and all claims which O’Meara might have against McDermott, either as a partner or otherwise, and thus avoid litigation, and the plaintiff violated that agreement by beginning his action for an accounting, he could not recover on the note. We have carefully examined the evidence, and fail to find any testimony on the part of either O’Meara or McDermott that would have justified the court in giving these instructions. McDermott testified: “I could see trouble was brewing. I said to him: ‘I have never been in trouble before, and I don’t want to have any. If you and Kerrigan will give me a written satisfaction in full of all demands, I will give you a note for $12,000.’ The character of trouble that I was expecting to get into in view of these demands that they were making, and the kind of talk that they put up, was after I saw their attitude and language, and I thought that they would start a suit of some character, and it might prevent the company from completing their payments, and completing their contract, and so rather than have any trouble — as I told them at the time I never was in court — at the time I was willing to give this note for a written satisfaction. * * * I asked him then for a written satisfaction, and he said he would make it out and hand it to me. I subsequently had a talk with him about getting the written satisfaction.” After the note was given he says he told O’Meara that he understood he was going to bring suit against him and Bishop Carroll, and O’Meara replied that he did not intend to bring suit. Again he testified: “I never made any proposition except this, and this was given for full satisfaction. The proposition that I have told about the clause,
Again, it is claimed that the motion for nonsuit should have been sustained on the ground that the respondent’s testimony in chief disclosed the fact that such an understanding as we have been discussing was had between the parties and that he violated it; but, as heretofore stated, we do not think his testimony, confused and unsatisfactory as it is in many respects, will bear that construction, and appellant’s version of the transaction specifically negatives the idea that such was the understanding of the parties.
5. Contention is made that the court erred in refusing to give the following instruction: “ (8) It was determined and adjudged in the action referred to that no agreement of partnership was ever entered into between the parties hereto in reference to the Burke and Balaklava claims, or in connection with the effort to procure a purchaser for the same, and that no sum was ever due from the defendant to the plaintiff upon any agreement of partnership in such enterprise. If you find accordingly that the note in suit had no consideration other than a part or the whole of what was supposed to be due to the plaintiff as a partner on the transaction referred to, it is wanting in any legal consideration and your verdict must be for the defendant.”
6. That payments were made on the Galiger & Clymo lease and option, substantially as agreed upon, is the law of the case. (See former opinion cited, supra.)
7. We find nothing in the affidavits on motion for a new trial which would warrant the court in reversing the judgment and order on account of misconduct of counsel during the argument
The judgment and order are affirmed.
Affirmed.
Rehearing denied, May 20, 1911.