46 A.D. 450 | N.Y. App. Div. | 1899
The complaint shows that on November 21', 1896, the plaintiffs, sold and delivered to the defendants, on credit, a quantity of leather at the agreed price of $1,823.66; that prior to such sale the defendants fraudulently represented they were responsible ; that in fact they were insolvent as they knew and purchased said goods, with the preconceived purpose not to pay for the same, and to-deceive the .plaintiff ; that said defendants had fraudulently represented to a commercial agency that they possessed property of the
It further alleged that chattel mortgages Upon a portion of the leather sold to the defendants were given' to two banks in the city of Buffalo, and that the plaintiffs in rescission of such sale began an action • of replevin to retake the property in the custody of said banks; that with tile knowledge and assent of the present defendants, said action was settled for the sum'of $1,200, and the net sum accruing to the plaintiffs therefrom, after-deducting the costs and expenses of said replevin action, was $Y50. -
This action is' brought imputing- fraud to the defendants and to recover as damages-in consequence thereof' the .amount unpaid on the original contract. • • -' • •
The defendants demur on the .ground that the complaint does not state a cause of action^ The position .of.,the defendants.is that the action-of replevin was an election to rescind the agreement and to treat the same as terminated, and that this action is an affirmance of the contract^ and inconsistent with.-the rescission-thereof as indicated by the replevin-action,'and that both., remedies arc not available to the plaintiffs.- . . .
It is' a rule of practice, well established^ that a Suitor cannot pursue two incompatible remedies, and when he has-once made his election with knowledge of the facts, his act is, conclusive and debars him from obtaining redress on a contrary tack.- (Ency. of PI. & Pr. -363.) But the basis of this rule is that the remedies are inconsistent. To illustrate, one cannot at once rescind and confirm a contract. Do the plaintiffs in this action trench upon that rule ? A part of the goods was sold, and they sought to' reclaim it by an action of replevin'. They in effect recovered this portion, but the balance of‘the goods was still Unaccounted for. If they could be-discovered another action of replevin could be maintained, or the kindred action of conversion. Instead of this, the plaintiffs pursued another remedy, not in vindication of the sale, but - akin to the action of trover, and to accomplish the same result, that is, to recover'a judgment, founded on the -wrongdoing of the defend
In Powers et al. v. Benedict (88 N. Y. 605) the plaintiffs brought an action to retake the property which it was claimed had been obtained from-them through fraud. This action yas in disaffirmance of the contract. While this action was pending the plaintiffs commenced proceedings to have the defendant adjudged a bank- - rupt, and stated in their petition that their demand against him was ' the value of the goods not retaken in the action. The Court of Appeals held that the election made by the plaintiffs, so far as the goods taken were concerned, was a final rescission of-the agreement. But “ the plaintiffs by an effort to retake their entire property, if successful in part only, do not lose the right to pursue the original wrongdoer for the value of the unfound portion. * * * A wrongdoer carries. avv'ay one hundred bags of grain ; the ■ owner recovers fifty by legal process from one who received it without
In Welch v. Seligman (72 Hun, 138) Judge Follett says, at page 141: “ This is not an action on the contract to recover the agreed price, but an action in disaffirmance to recover damages for the fraud alleged to have been practiced, and there is nothing in the point that this action is inconsistent with the replevin action previously brought as the learned trial judge correctly held.” (Emma Silver Mining Co., Limited, v. Emma Silver Mining Co. of N. Y., 7 Fed. Rep. 401, 420 et seq.)
The numerous authorities cited by the appellants’ counsel enunciate the familiar doctrine that a person cannot at once repudiate and affirm an existing contract, but I do not find any authority asserting that a recovery of a part of the property by the vendor precludes him from following the wrongdoer to recover the balance charginghim with fraud in obtaining it. That remedy is not necessarily in recognition of the contract.
In view of the position we have taken, the contention of the appellants’ counsel that the settlement with the banks was an accord and satisfaction is untenable. The replevin action pertained only to a definite portion of the property sold by tjie plaintiffs, and the complaint shows unequivocally- that the adjustment only affected that action. The settlement Avas made with the consent of the defendants, and presumably the plaintiffs obtained what the property involved in that action was fairly worth and no more. In any event, the subject-matter of that adjustment is open to investigation on the trial.
The. interlocutory judgment is affirmed, with the costs and disbursements of this appeal, with leave to the defendants to withdraw their demurrer and to answer upon payment of the costs of the demurrer and of this appeal.
All concurred.
Interlocutory judgment affirmed, with costs and disbursements of this appeal, with leave to the defendants to withdraw their demurrer and answer upon payment of the costs of the demurrer and of this appeal.
