68 Vt. 161 | Vt. | 1896
This is a bill for the specific performance of an agreement to devise certain houses, or rather, not to-defeat a devise thereof already made. The essential facts are these: The orator, Henry S. White, and his father, Hiram S. White, were partners in business for many years. Dissolution of the firm was followed by serious disagreement between them concerning their partnership affairs, each claiming that the other was largely indebted to him on account thereof. Finally, in September, 1892, Hiram sued his son in respect of them, demanding large damages, and the .suit was duly entered in court. . On April u, 1893, Hiram made his will, whereby he devised to the orator Pinkerton, his grand-daughter and Henry’s only child, the houses in question. Shortly before June 14, 1893, Hiram, being sick and about to die, desired to obtain a settlement of said suit, which was still pending, and of all claims and
Instantly upon the consummation of said settlement, Hiram determined to break the contract by defeating the devise, and accordingly, two days after, conveyed said houses, through another, to his wife, who paid no value thereof, and who alone is defending this suit. Hiram died on the twenty-ninth of said June, and his will was duly probated, and commissioners appointed on his estate, before whom Henry appeared with counsel and witnesses, and presented for allowance his entire account against his father growing out of said partnership business, and also said six-hundred-dollar note. The estate presented his release to his father in defence, and introduced no other testimony. Henry raised the question by testimony, such as he now introduces, and argued that said release was obtained by fraud, and in consideration that said devise should stand, and as that had been defeated, the release was void.
The orators claim that they are not barred of relief by the proceedings before the commissioners and their decision, because they say the parties are not the same, as that was a proceeding in favor of Henry alone, in which Mrs. Pinkerton had no interest, whereas here she is the party in interest, and he is joined only for conformity, as her equity arises out of a contract made through him for her benefit; that the issues are not the same, and the ground of the commissioners’decision does not appear, whether it'was that Henry’s claims were not eslablished by sufficient proof or were cut off by the release ; if the former, that that was not a finding that the claims were not made in good faith, which is the only question that can be raised here; and if the latter, it is consistent with and sustains the present claim; that although it was argued before the commissioners that the release was obtained by fraud, it does not follow that they so found, but rather that the fraud was an afterthought that did not ^affect the-settlement evidenced by the release, and was only a violation of the contract, for which the parties in interest had their remedy; as, the pi'esent remedy; and that Henry could recover before the commissioners only on the ground of a rescission of the contract, but that he had in his hands three hundred dollars, the fruits of that settlement, which was inconsistent with a rescission.
Although it is alleged in the bill that said devise was made known to Mrs. Pinkerton by the testator, yet it does not appear that she knew of said contract before the bill was brought, and in that she does not disavow the act of her father in thus presenting his claims to the commissioners, nor undertake to avoid .the effect of it, although the fact itself is fully alleged, and therefore it would seem that when the bill was brought she tacitly acquiesced in it.
He who has inconsistent remedies stands at the parting of the ways, and if he would proceed, he must elect which he will take, and having taken one, he can never retrace his steps and take the other, no matter where the one taken may lead him. It is inconsistent both to affirm and to dis-affirm a contract, and therefore he who has-a right to do one- or the other must elect which he will do, and any decisive act, done with knowledge of the facts, constitutes an election, and the bringing of a suit is such an act, especially if prosecuted to judgment, if its maintenance necessarily involves an election to affirm or disaffirm. There are many cases illustrative of this doctrine, to a few of which we will refer. Thus, in Priestly v. Fernie, 3 Hurl. & N. 977, it is held that when the master of a ship signs a bill of lading in his own name and is sued to judgment on it, an action thereon will not lie against the owner, although satisfaction of the judgment against the master has not been obtained. In Scarf v. Jardine, 7 App. Cas. 345, a firm of two partners dissolved. One retired, and the other continued the business with, a new partner under the same style. A customer of the old firm sold and delivered goods to the new firm without notice of the change. After notice he sued the
“A rent charge is granted to A and B and their heirs ; A distreyneth the beasts of the grantor, and he sues a replevin; A avoweth for himself and maketh conusance for B; A dyeth and B surviveth; B shall not have a writ of annuity, for in that case the election and avowry for the rent of A barreth B of any election to make it an annuity, albeit he assenten not to the avowry.” Co. Lit. 146 a.
The doctrine is fully recognized in Hartland v. Hackett, 57 Vt. 92, and whatever may be said of its application to that case, it is evident that a proper discrimination was not there made between consistent and inconsistent remedies.
Although it does not appear that Henry refunded or offered to refund the money he received on settlement, yet the presentation of his claims to the commissioners necessarily involved a rescission of the contract, and that he did not take the requisite step of refunding or offering to refund, makes no difference with the legal consequences of the act in respect of barring relief here, for, as we have seen, the act, which was the commencement of a suit, determined his election and fixed the consequences. That proceeding and this are entirely inconsistent, as that went for a disaffirmance, while this goes for an affirmance of the contract, and therefore the former bars the latter.
Many other questions were discussed at the bar, but as this is decisive of the right, it is unnecessary to consider them.