Ware v. Percival

Jul 1, 1873
Versions:61 Me. 391
ApplbtoN, C. J.

This is an action of trespass for unlawfully taking and carrying away certain shares of the capital stock of the Maine Central Railroad Company, the property of the plaintiff.

The defendants are assessors of the town of Waterville. The plaintiff was assessed by them as one of its inhabitants. Not being one, the assessors had no jurisdiction. A warrant was issued in due form of law to the collector of said town, who seized and sold the stock in controversy, and paid over the proceeds of such sale to its treasurer.

The property of the plaintiff having been seized and sold to pay an illegal assessment, the assessors having no jurisdiction, the plaintiff had two remedies, either of which he might pursue. He might sue the assessors in tort, or, waiving the tort, he might bring assumpsit against the town for the proceeds of the property sold. The damages are determined upon different principles, as the remedies pursued are in tort or assumpsit. Electing one o two forms of action, the party elects that his damages shall be determined by the rules which govern in assessing damages in the remedy adopted. The plaintiff, having his election as to the remedy to be pursued, brought bis action of assumpsit, pursued it to judgment, and has received full satisfaction of the execution issued upon such judgment. In that suit, the tort being waived, he recovered judgment only for the proceeds of the stock sold and interest thereon.

Having thus affirmed the sale by claiming the proceeds and receiving the same, he now in this action demands damages for the tort heretofore waived. Rut the plaintiff having elected his remedy and received the satisfaction which the law gives in such case cannot revive his cause of action. A claim arising from one entire and continuous tortious act cannot be divided into distinct demands and made the subject of separate actions. A plaintiff cannot divide bis cause of action, recover compensation in assump-sit by waiving the tort, and then having received such compensation resort to the tort which has been waived, and in that again recover compensation as though the tort had not been waived. *394He cannot waive all wrong doing and recover compensation upon that basis, and then, treating the tort once waived as a subsisting grievance, recover damages which are to be assessed upon different principles. Neither can he recover part compensation in assump-sit, thus waiving his tort, and then resorting to it as an existing wrong recover the residuum of damages in another form of action. He cannot split his cause of action into fractional parts and recover for such fractions in different suits and upon different grounds of action.

In Inglee v. Bosworth, 5 Pick. 502, a suit was brought against the assessors for-an assessment which was unauthorized and illegal. In delivering the opinion of the court, Morton, J. says, “ Although the money collected by this illegal distress and paid into the parish treasury might have been recovered by an action for money had and received against the parish (Amesbury W. & G. Manuf. Co. v. Amesbury, 17 Mass. 461; Sumner v. First Parish in Dorchester, 4 Pick. 361), yet in that form of action the remedy might not have been commensurate with the injury and the defendant was not bound to resort to that mode of redress.” But if he does resort to that mode of redress he must be bound by the damages which are there obtainable. These, as has been seen, are limited to the proceeds of the property sold illegally. Dow v. Sudbury, 5 Met. 73; Shaw v. Becket, 7 Cush. 443.

Having sought and obtained the redress which the form of action first chosen gave him, he cannot be permitted again to renew' litigation for a grievance once waived and without the waiver of which he was not entitled to recover.

Judgment for the defendants.

CuttiNG, DickeRSOn, DanfoRTH, YiRgin, and PeteRS, JJ., concurred.