Warren v. Landry, 74 Wis. 144

Warren v. Landry

74 Wis. 144 | Wis. | 1889

Cassoday, J.

The findings of the court are not assailed, except in so far as it is found that the plaintiffs ratified the Patrick contract after the timber had been cut, removed, and disposed of, With full knowledge of such cutting, removal, and sale. The plaintiff Warren testified, in effect, that he had a conversation with Stewart respecting the logs cut from these lands in May, 1882, and then told him that he understood that Stewart had purchased the logs cut by Landry on said lands, and that the plaintiffs would look to him for their pay; that he received such information from a letter written by Cochran, April 28, 1882; that he saw Cochran in May, 1882, and was by him notified that the timber was mostly cut off the land at that time; that he thereupon made inquiries, and found that Landry had logged there; that at that time Stewart told him he had bought Landnfs logs, and paid him some thereon; that subsequently he authorized his attorneys to make the verbal agreement; that he made an arrangement with Landry that if he paid over the $700, and the $800, with interest, he would deed him the lands; that subsequently the suit for the strict foreclosure of the contract was commenced; that, after they got judgment in that suit, their attorneys received the $700 pursuant to that decree, which determined that there was due the plaintiffs upon the contract in addition the $800 and interest. We must hold that the several findings of fact are all supported by the evidence and must be treated as verities in the case, and hence that the contract was in fact ratified, as found by the court.

The theory of the plaintiffs is that, assuming that the Patrick contract was valid when made, jmt it only authorized the cutting of the 200,000 feet; and that all cut in excess of that amount was wrongfully cut, and for which Landry and the other defendants became liable in trespass. Assuming this to be true, still it was competent for the *151plaintiffs, with full knowledge of the fact that the lands had been substantially stripped of the timber, to waive the tort and pursue their remedies on the contract. This is precisely what was done, not only by the negotiations and agreements, but by the action for a strict foreclosure of the contract, and by virtue of which they obtained the $700 as a part of the contract price for the. lands and also the lands; and it may be that in such equitable action the plaintiffs might have recovered, as against Landry, the actual value for all timber taken from the lands in excess of the amount actually authorized by the contract, as in Hoile v. Bailey, 58 Wis. 452-456. But that question is not before us for consideration. The question here presented is whether the plaintiffs, after having thus ratified the contract and pursued a lawful remedy under it, were still at liberty to go back and maintain this action of naked trespass for such excess, the same as though Landry's cutting of such excess had never been authorized nor sanctioned with fujl knowledge of the facts by such subsequent negotiations, agreements, foreclosure, and judgment. The two remedies thus sought to be made available are certainly inconsistent with each other. The rule is universal that where a party has the choice between two inconsistent remedies or causes of action, and he deliberately adopts the one, such election becomes conclusive upon him and precludes him from subsequently adopting the other. Mariner v. M. & St. P. P. Co. 26 Wis. 84; Hollehan v. Roughan, 62 Wis. 64; Kaehler Dobberpuhl, 60 Wis. 261; Dunks v. Fuller, 32 Mich. 242; Nield v. Burton, 49 Mich. 53; Farwell v. Myers, 59 Mich. 179. Besides, Landry having deposited the $700, and the notes and mortgage of $800, as agreed in the contract, and the plaintiffs, with full knowledge of the facts, having subsequently ratified the agreement and deposited the deed as stated, such ratification related back to the time of the making of the contract; and hence the rights and liabilities *152of the parties in equity, as to the cutting and removing the timber, must be regarded the same as though the deed, as well as the notes and mortgage and the $700, had all been deposited in the bank within the time contemplated in the original contract. It is to be remembered that the defense on the part of the Stewarts and Alexander is equitable in its nature. This being so, the relation of the parties in equity, upon such ratification, was that of mortgagor and mortgagee, instead of that of vendor and vendee.

It is claimed that, as the strict foreclosure judgment was not pleaded in the separate answer of Landry, it is not, as to him, available ás an equitable defense. But it was so pleaded by the Stewarts and Alexander, and hence was admissible in their behalf. If the plaintiffs wished to avail themselves of such defect in Landry's answer, the objection should have been specific, in which event the same might have been obviated by an amendment. Besides, we are inclined to think it was admissible upon that answer, since it tended to prove that the trespass alleged had in fact been waived by the plaintiffs.

By the Oourt.— The judgment of the circuit court is affirmed.