16 Haw. 418 | Haw. | 1905
OPINION OF THE COURT BY
This is an action of replevin for certain rails, cars, locomotives, equipment and materials of a railroad on the plantation of the Kona Sugar Co., Ltd., all of the property of which company had been purchased by the defendant at a receiver’s sale. The plaintiff had delivered this railroad property to the company under an agreement claimed by the plaintiff to be a conditional sale and so held by the trial judge, who heard the case, jury waived, and rendered judgment for the return of the property and $1030 damages and an alternate judgment for $22,000 in case the property should not be returned. The case is brought here by the defendant upon numerous exceptions. It has been argued and briefed at considerable length upon many points, but, in the view that we take, it will be sufficient to decide the single point as to whether the plaintiff is estopped from bringing this action of replevin, based on the theory that the title to the property is in itself, for the reason that it had previously elected to pursue an inconsistent remedy, namely, by bringing an action for the price of the property and to enforce a materialman’s lien for the same, on the theory that the title to the property had passed to the vendee, the Kona Sugar Company.
It is a well settled principle of law that when a person adopts one of two or more inconsistent positions, whether in litigation or in pais, he cannot afterwards repudiate that position and adopt another. Any decisive act with knowledge of his rights and the facts determine his election and work an estoppel. In order to work an estoppel upon the principle of election it is not necessary that the course first adopted should be pursued to com
Just how far a vendor may go in enforcing payment of the purchase price in the case of a conditional sale, which for present purposes we will assume this sale to be, is a matter of some diversity of opinion. It may be that a mere action for the price, although carried to judgment, should not be held to amount to an election where by the very terms of the contract the title is to remain in the vendor until payment of the price, for in such case an action alone for the price would not necessarily assume that the title had passed to the vendee inconsistently with the terms of the contract, and it would seem to be immaterial on the question of the transfer of title whether the payment, upon which such transfer would take place under the terms of the contract, were voluntary or forced through legal proceedings. Such was the holding in Thomason v. Lewis, 103 Ala. 426, 15 So. 830 (see also Campbell Mfg. Co. v. Rockaway Pub. Co., 56 N. J. L. 676), although perhaps the weight of authority is the other way. See cases infra. Be that as it may, it seems to be pretty generally held that if the action is accompanied by an attachment upon the propery in question, there will be an estoppel by election, on the theory that an attachment recognizes the title as being in the vendee, although the contrary seems to have been held in Matthews v. Lucia, 55 Vt. 308, and perhaps other cases. See Crompton v. Beach, 62 Conn. 25;
“It would seem, from these authorities, that the question of election is not made dependent upon whether such election may be rendered effectual or not. Any unequivocal act on the part of the vendor, recognizing the title as being in the vendee, will preclude such vendor from afterwards setting up title in himself ; and it is also well settled that, when an election between inconsistent rights is once made, it cannot be afterwards revoked.*422 It is clear that the claimant in this case could not, under the statute, fix a material man’s lien upon property the title to which was in himself; and, when he filed his claim and statement with the probate judge for the purpose of creating a lien upon the lumber in question, this was an unequivocal act on his part to treat the lumber as the property of the defendant in execution, and, of course, a waiver and abandonment of the title reserved on the sale.”
The same court had made a similar decision previously. Lehman, Durr & Co. v. Van Winkle, 92 Ala. 443, 8 So. 870.
Cases, such as Peninsula El. Co. v. Norris, 100 Mich. 496, and Case Mfg. Co. v. Smith, 40 Fed. 339, which hold that a provision in a contract for a retention of the title does not prevent the enforcement of a lien, are not inconsistent with these propositions. They, on the contrary, show that, so far as such a provision is concerned, the remedy by lien is effectual. They do not hold that, if such a remedy is pursued, the remedy by recovery of the property afterwards would not be precluded.
The plaintiff, without disputing the soundness of these views, seeks to show that they are inapplicable to the present case, upon the principle, which also is generally recognized, that the doctrine of election of remedies does not apply where the remedy first pursued would necessarily be ineffectual. There is a distinction between an election of remedies and a mistake of remedies. An election implies that .there are two or more remedies as to which á choice may be made, but if there are not, although the party may suppose that there are, there can be no election. For instance, if one should attempt to enforce a mechanic’s or materialman’s lien on the theory that he was a subcontractor and it should turn out that he was a principal contractor, he would not be estopped from subsequently enforcing a. lien as principal contractor. McLaughlin v. Austin, 104 Mich. 489. The institution of a suit mistakenly as subcontractor would not alter the relation between the parties. But the retention of title by a vendor is a privilege reserved for his benefit, which he may waive at pleasure, in which case the sale would become absolute, and if he does waive this right by tak
What the plaintiff relies upon principally, however, in order to show that there was no remedy under the materialman’s lien law is its contention that since some of the property that was sold, as, for instance, the cars and locomotives, were nonlienable (because they were not and could not be attached to the realty), and since the contract was entire, (because all of the goods were sold for a lump sum), the price of the lienable items could not
It may be added that it is at least doubtful whether, assuming that the contract was entire so far as now appears, the court should in the present case go into the question whether the attempt to enforce a lien might have terminated successfully in whole or in part, for it is impossible to say what evidence
It has been settled in this jurisdiction that the findings of fact of a trial court, jury waived, have the same force as the verdict of a jury, but upon the question of election in this case the material facts are undisputed and the construction of the contracts, which are in writing, is a matter of law for the court. Under such circumstances this court may reverse the findings and judgment of the trial court, and it does so in this case.
The exceptions, so far as they raise the question of election, are sustained, the judgment of the trial court is reversed and the case is remanded to that court for such further proceedings as may be proper.