*1 412
The 246 Company, 722; Journal v. City Grubbs Kansas Pub lic 45 (2d) Service S. Company, W.
It must be in mind present borne that this ease ques does not tion proper interrogate as to whether Smith con cerning habits; nor a in which questioned case the witness was concerning another; made him statements nor a case where the witness was asked bias' or prejudice for or party, delinquencies either but a case- which the of the witness attempted were put to be in issue the defendant. The morals of Smith was a collateral matter and the' defendant was concluded subject. the statements of Smith on that v. A. C. L. [Connell & Co., Bowden, Haase Sons W. Wendling Fish S. v. Jenkins, (2d) S. W. Janis v. S. W. questions foregoing presented disposes The of all of the on this G., appeal. Sperry, affirmed. concurs. foregoing opinion PER' CURIAM:—The Campbell, C.; adopted of the court. is affirmed. opinion as the All concur. Fidelity Guaranty Company, Appellant,
United States Respondent. Fidelity Company, National Bank and Trust 47. S. W. Appeals. City October 1937. Court Kansas *2 Hanna & Hunuits for appellant.
McCune, & Downing, Lynn Caldwell Webb B. S. Eastin for and respondent. Appellant, a SPERRY, surety company, plain will called
tiff herein respondent, bank, and a will be Plain defendant. called tiff surety had executed a in Con bond favor of the Continental Company, Continental, struction herein for a promising, called consideration, against indemnify to reason of the dishon loss esty surety coverage employees. of its of was amount the $100,000, among employees dishonesty and the insured whose was against Chaney, pay-roll a the -custom and clerk. was duty job semimonthly, a compile, of the field on the to foreman worked, and time employees, pay, list of names of field rate of City, in Kansas pay-roll department and forward same to same, cheeks in ac Chaney compiled prepared of where summaries proper whole summaries, to cordance with said took and signature of Be company pay verification and checks. for officials August Chaney began adding names ginng 30, 1930, the time sheets employees, working, former who were summary, foreman, carrying names over in such to the by the sent proper would payable to them. The officers preparing and checks regular employ together with those of checks, innocently sign said regular employees to checks of forward Chaney would then ees. checks of former abstract and would proper destination payees, forge indorsement of named employees prepared, so Continental, defendant, depository present them charged defendant, Chaney by paid to they were where total sued on sum of The cheeks account. Continental’s defendant. window # all $1,516.75, were cashed others, Chaney’s bore with seven cashed, together check such first forged indorsement of in addition indorsement own Chaney, innocently knew Defendant payee therein. named regular believing business, cashed said in them checks course genuine every respect. loss, discovered noti- plaintiff, and, upon supplied plaintiff, fied submitted forms de- proof accompanied thereof, by signed Chaney. tailed confessions January 1931, plaintiff On or about indemnified Continental loss, having Chaney for the defendant full first demanded of Continental, name of restore to account Continental’s Chaney’s peculations. Upon payment loss, the amount of signed plaintiff a release of on form submitted it. Immediately paid plaintiff required thereafter Continental coverage back therefor increased its premium $100,000, paying Chaney been loss. it had before About year plaintiff sought, thereafter and received from Continental’s successor, parties, assignment an of its claim all other in- Chaney’s cluding defendant, by reason of its losses due to for- *3 geries and embezzlement. judgment jury,
On a was for defend trial the court without assignments urged are plaintiff appeals. ant and Several of error they plaintiff judg but down to whether or was entitled to boil not facts, practically agreed up on all of which were ment the above by appellate The supported documentary on or evidence. were theory. judgment, possible, any court affirm a if on should [Ral King (2d) al., et S. W. In a case such ston Purina Co. v. 734.] right this, party, if was for will not be dis as it though judg appeal, on even the trial court arrived at turbed wrong theory. Fidelity Mut. Life ment entered on Ins. a [Aloe Security 675, c. Wilhelm v. The Benefit Assn., Mo. l. Assn. Appeals, S. W. K. C. Court of 1042.] theory on that to sustain the Defendant seeks it position can take that stands the shoes of plaintiff best is by assignment subrogation,, (although' or it Continental, either n assignment, having year been executed a after that a claims executed, conveys rights orig- no more than the simple release was plaintiff not, conveyed; and that could inal release asserts because any rights subrogated may equity, of lack of become itself, defendant), and that have had as remedies, pursuing the one the em- outset, had of two a choice bank; by pursuing surety, and other and his bezzler theory to each opposed are other the two remedies it, any remedy prohibited or successor pursue one election the other. rights, pursuing from two or inconsistent rem if are more there There is no doubt any the one is a bar to pursue election to suit available, edies law in this State. settled That well other. is upon based [Tower 393, Co., l. c. Improvement Hill Compton et al. v. Johnson-Brinkman Commission Co. v. Mo. Pac. Railway The Co., case, 126 Mo. In gone the latter which had from this 344.] Supreme Certiorari, said, page on Court to the Court the court on ‘f is party right 349: It well settled law that where a has the pursue remedies, one of two his election, inconsistent and he makes begun suit, prosecuted his institutes in case the action thus is judgment, to final has received anything value asserted, a claim thus pursue under he cannot thereafter another (Italics remedy.” ours.) . and inconsistent “. . election of adoption co-existing remedies is the of two of one or more reme dies, with effect a C. precluding resort to others.” [20 J., page 3, that, section said while election of remedies 1.] yet but another name for estoppel, respects, it differs in some one invoking is that part which a need not as defense show disadvantage will adversary required that he suffer if his election; may stand profit he even reason said election. doctrine remedies, But waiver of election or of other remedies, existing only properly called, can is sometimes an invoked where has election been made two or more as between J., pages 3 consistent remedies. C. Once an election and 4.] [20 made, been and a has party has obtained satisfaction from full remedy, one cause of ends it no action and he can assert further. J., page C. satisfaction The rule is stated to be that when full [20 remedies, had from two or has been one of more inconsistent party through can assert his cause of another. action [9 pages L., weight R. To summarize: of author jurisdictions ity in unquestionably this other seems to be that pursue one elects to of two or remedies, when more inconsistent *4 knowledge facts, with full of all receives full satisfaction there and from, adversary he can no assert cause of action and his may though adversary assert the election as defense even such may fact, have, profited thereby. has no detriment, suffered and in - knowledge When Continental obtained full all the of of facts forgeries Chaney’s embezzlement, including and the nature and January loss, prior 15, 1931, of did amount its which it had it to open payment to it two remedies. It could of have demanded its money theory paid from the when defendant on that defendant forged Chaney paid the checks on of the bank out indorsements money its of had own and that Continental. Since defendant not money deposit legal never been received Continental’s on and had ly out, money pay authorized to it still had Continental’s and it Savings & must account to Continental therefor. Loan Co. [Midland 689; l. c. 7 Bank, v. Tradesmen’s Natl. Fed. 686, J. 412; 684, Springfield Grocery Co., 683, sec. Biscuit Co. v. Union 171; App. 542, 3 R. C. L. Am. 300, l. c. sec. Jur. of pay- Or affirmed the act band-in sec. it could have the forged money and, theory ing upon ont on a indorsement money, pursued Chaney Chaney its it could have that had and of sought by return money and obtained the its embezzled him. Bowery Savings Bank, (N. Y.) v. N. E. l. c. [Fowler Lincoln, (Neb.) 912, Nat. First Bank 90 N. W. l. c. Jones are each thories inconsistent with other. See above ci- The two in paragraph. tations, especially preceding last two On money January 15, 1931, defendant had Continental’s and either money received, Chaney for had and or to it it and was liable had money Obviously, and received. could not was liable for had both money pro- time. could have have same at the same Continental ways either, go not two ceeded could at time. but same it, approbate have one cannot both As the Scotch law said to and Being in this it reprobate position, one and the time. same chose Chaney. money in elected, pursue its notified hands paid money herein on “have not been plaintiff that the sums of sued Employer, any way in whatever to said ex- over or satisfied fraudulently stated, misappropriated by cept as herein have been employee to use and benefit with intent de- own said notwithstanding employer same, that due and le- prive the said Employer upon the said the said Em- gal by demand has been made that ployee same.” Thus it will be took for the seen position Chaney money, had its return of same that demanded he had it his own use. him, from and converted claimed Chaney’s Failing Chaney, upon get it from made demand had with Continental for a bondsman, plaintiff, who contracted occasioned consideration, indemnify any the latter for loss n Chaney to Continental Chaney’s not liable embezzlement. could money alleged to theory have upon any embezzlement unless was of Continental. That horn- property been embezzled is. book law. made Continental, facts, demand, of all of possession
When facts, paid advised the loss had plaintiff, fully when completed. Con- pay, the election contracted to against defendant, and, assert claim tinental could thereafter position logic can a better theory of reason or respect. election of Continental than Continental this of two inconsistent remedies a successful conclusion pursue to asserting the claim. The from further result estops plaintiff just equitable; logical, it is hereby only is not reached justice equity, law sought by reached goal ever *5 reasoning. logical Campbell, C., concurs. is affirmed. foregoing opinion C., is a- Sperry,
PER CURIAM:—The is affirmed. court. opinion All dopted as the concur.