16 Haw. 717 | Haw. | 1905
Lead Opinion
OPINION OF THE COURT BY
This is a petition for a rehearing of the case decided ante, page 118. The action is replevin for rails, cars, etc., claimed to have been sold by the plaintiff on the condition that title should remain in it until payment. The court held that even if title were to remain in the plaintiff until payment still the plaintiff could not maintain replevin, which is based on the theory that the title was in it, for the reason that it had pre viously elected an inconsistent right by bringing an action for the price and to enforce a materialman’s lien, which was based, on the theory that the title had passed to the vendee.
Tor the purposes of the original decision it was assumed that the contract was one of conditional sale or, perhaps more accurately speaking, that it was an executory contract to sell upon condition precedent. We will proceed upon that assumption for the purposes of the present decision also, although it may not be out of place to state that in the opinion of a majority of the court the sale was absolute and therefore replevin could not be maintained in any event.
The petition sets forth seven grounds, all of which were either-considered by the court or not raised by counsel at the original hearing. They may be summed up as follows: (1) That the
As to the first of these grounds, the court merely reversed the judgment of the trial court and remanded the case for such further proceedings as might be proper, not knowing whether the plaintiff would be able to introduce further evidence bearing on the question of election which would make it worth while to have a new trial. Apparently the plaintiff knows of no other evidence that it can introduce upon that question but now asks the court to decide whether the election manifested by the institution of the lien suit extended to all the items covered by the contract or only to the lienable items. It was unnecessary to pass upon this as a primary question in the original opinion but it was passed upon incidentally by inference from the reasoning in that opinion. It goes without saying that the plaintiff could not elect to treat the sale as absolute as to part of the property covered and conditional as to the remainder. The lien suit was in fact instituted as to all the items.
As to the second ground, it will be unnecessary to discuss in detail all the points raised by counsel, for to do that would mean largely a repetition of what was said with more or less fulness in the former opinion upon the doctrine of election and its application to the facts of this case. It will be sufficient to refer to a single point in regard to which counsel for the plaintiff seems not fully to understand the former opinion. As shown in that opinion the election is not so much between remedies as between rights. The election in this case was between the right of the plaintiff to proceed upon the theory that the sale was conditional and that the title remained in it until payment, and the right to proceed on the theory that the sale was
“An election of remedies is the choice by a party to an action of one of two or more coexisting remedial rights. All actions which proceed upon the theory that the title to property remains in plaintiff are naturally inconsistent with those which proceed upon the theory that title has passed to defendant. But there is no inconsistency between different legal remedial rights, all of which are based upon claim of title to property in plaintiff or all of which are based upon the affirmance of title in defendant. . . . The prosecution of one remedial right to judgment or decree, whether the judgment or decree is for or against plaintiff, is a decisive act which constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. . . . By preponderance of authority the mere commencement of any proceeding to enforce one remedial right, in a court having jurisdiction to entertain the same, is such a decisive act as constitutes a conclusive election, barring the subsequent prosecution of inconsistent remedial rights. ... In order to constitute a binding election the party must at the time the election is alleged to have been made have knowledge of the facts from which the coexisting, inconsistent remedial rights arise. ... 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 made a conclusive election, and is not precluded from prosecuting an action or suit based upon an inconsistent remedial right. . . . An election once made, with knowledge of the facts, between coexisting remedial rights which are inconsistent is irrevocable and conclusive, irrespective of intent [Clausen v. Head, 110 Wis. 405], and constitutes an absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with that asserted by the election.” The italics are ours.
It is true that there is more or less confusion in the books in the use of the words “remedies” and “rights” in connection with the doctrine of election, but in general it will be found upon an examination of the cases that where it is held that no election has been made, either there was in fact no right, although one was supposed to exist, for the enforcement of which the action claimed to manifest an election was instituted, or if there was such a right the action was instituted under a msitake of fact, or proceedings were brought on two or more inconsistent rights at the same time, in which case, of course, there was no election. Still, most of the cases speak of rights or causes of action as distinguished from mere forms of action. For instance, in Snow v. Alley, 156 Mass. 193, upon which the plaintiff relies, the court, by Mr. Justice Holmes, said:
“Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of choice. But the fact that a party wrongly supposes that he has two such rights and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that.”
“The assignee has an election, not of remedies merely, but of rights. But an assertion of one is necessarily a renunciation of the other. This results from the plain and very obvious consideration, that the assignee cannot affirm the sale in part and disaffirm it in part; if it is to stand as a valid sale the property of the goods remains vested in the purchaser and he remains liable for the price. But if the sale is avoided and set aside, it stands as if it had never been made. . . . What action on the part of the assignee is to be taken as proof of his election? . . .We think that if the assignee commences an action against the purchaser for the price, and causes his property to be attached to secure it, this is a significant act, an unequivocal assertion that he does not impeach the sale but by necessary implication affirms it.”
It thus seems that there may be an election not only when the action instituted has not been carried to completion but also when it has been carried to completion unsuccessfully. It is unnecessary, as intimated in the former opinion, to say definitely whether the lien suit could have been carried to completion successfully or not, and in Johnson-Brickman Co. v. Mo. Pac. R. Co., 126 Mo. 344, cited by the plaintiff, it was held that where the action was not carried to completion neither the trial court nor the appellate court could determine whether it could have been carried to completion with success, — although the court gave this as one of the reasons why it should hold, as it did, that the commencement of an action accompanied by an attachment, if not carried to judgment, would not amount to an election so as to prevent a subsequent action of replevin, which ruling it must be conceded is contrary to the views expressed in our former opinion, but which also in our opinion is contrary to the great weight of authority and to cases referred to by that court and is based upon a confusion as to rights and remedies and upon the idea that to constitute an election there must exist facts amounting to an estoppel in pais. Election differs from the various classes of estoppel and rests on the principle that one cannot occupy inconsistent positions. Whether
The petition for a rehearing is denied.
Concurrence Opinion
CONCURRING OPINION OF
The decision in this case was based upon the theory of a conditional sale, although the court did not say that they regarded the transaction as of that nature. It is only on the theory that the sale was conditional that the question of election can arise.
The facts are as follows: February 12, 1900, the plaintiff agreed to “furnish” to the Kona Sugar Co. and the company agreed to accept in Honolulu certain railway material and equipment at stated prices to be delivered at stated times upon payment of drafts accompanying bills of lading. This agreement was not executed, as the drafts were not paid and the property remained for many months in the plaintiff’s possession in Honolulu.
March 13, 1901, the plaintiff agreed with the company that upon payment on the following day of $10,000 with the company’s promissory note for $37,044.53 payable in six months with interest at 7-|- per cent., secured by its first mortgage bonds of that amount it would deliver to the company “the bills of sale authorizing you to take charge of the rails, locomotives, cars, scales and other materials now awaiting delivery, upon the express condition and understanding that said rails, locomotives, cars, scales and other materials are and shall remain the property of William W. Bierce, Limited, until the full payment of the note above described, according to its terms.” This was done and the plaintiff “released the bills of lading from the drafts,” the railroad equipment “was removed from Honolulu to Kona and the railroad of the Kona Sugar Co. was con
By the second agreement the property remained the plaintiff’s subject to payment of the note at maturity, upon the happening of which event the company would have become its owner. Upon non-payment of the note the plaintiff had the undoubted right to claim the property as its own and the equally undoubted right, notwithstanding the non-payment, to hold the company as a purchaser, in the latter case treating the agreement as executed instead of executory, but the two rights being directly inconsistent with each other, both of them could not be exercised either concurrently or successively.
The civilians would have applied to this case the maxim “allegans contraria non est audiendus,” meaning that a man shall not be permitted to “blow hot and cold.” If when the plaintiff brought this lien suit it knew that the bonds it held as collateral security for the unpaid purchase money were absolutely of no value, as afterwards was shown, then as a matter of common business sense it would have claimed the property as its own and as not sold to the company, and would not have claimed that it was sold as was necessary to do in bringing a lien suit. It is to be inferred therefore that the plaintiff then considered that it was for its interest to treat the company as a purchaser in order to get some benefit from the bonds. There was no other possible reason for a lien suit, for if successful it could only have secured to the plaintiff a judgment which would be a preferred claim on the company’s plantation;
But in the one case as in the other, unequivocal words or conduct of the seller showing that he does not treat the property as forfeited or as unsold, and does treat it as sold, would preclude him from afterwards setting up the inconsistent claim that he owned the property and had not sold it. The plaintiff having exercised its option of affirming the transaction as a sale cannot disaffirm its own act.
I concur in the opinion of the court that the ease ought not to be reheard.
