
    George R. Boots, v. Charles Ferguson, Francis B. Pulver and J. Andrew Henry.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Practice—Election between inconsistent remedies—Effect of.
    Where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. The remedies are not concurrent, and where the choice between them is once made the right to follow the other is forever gone. (Cases cited.)
    
      2. Same—Must know the facts before it is binding.
    In order to constitute a binding election there must exist a knowledge of the facts upon which the inconsistent remedies may be founded. Following Equitable Co-operative Co. v. Henee, 3 N. Y. State Rep., 100.
    3. Same—When deemed to have made election.
    This action was brought to recover damages for the alleged conversion of a quantity of lumber and timber. The plaintiff had previously brought an action, the complaint in which alleged full performance on the part of the plaintiff in the construction of a certain bridge and that after the completion of it the same was duly accepted by the defendants whereby they became indebted, etc. Issue was joined in that action and resulted in a judgment in favor of the defendants on the ground that the claim was barred under the statute of limitations. Before said action was brought the plaintiff knew that the bridge had been taken down and he also knew of the conversion of the material composing the bridge. Held, that the plaintiff must be deemed to have made his election of remedies in the first action, and, having done so, his right to maintain this action is gone; that the two actions were inconsistent.
    Motion for new trial on exceptions taken at the Yates circuit, ordered to be heard at the general term in the first instance.
    
      Edwin Hicks, for pl’ff; W. H. Adams, for def’ts.
   Haight, J.

This action was brought to recover damages for the alleged conversion of a quantity of lumber and timber. The defendants are commissioners of highways of the town of Gorham. On the 31st day of May, 1873, John Washburn, Ñ. B. Washburn and David Sutherland, the commissioners of highways of the town of Gorham, entered into a written agreement with one William Conley to build a bridge across Flint creek in that town for the sum of $1,000, to be paid for when finished and accepted by the commissioners, and to be completed on or before the 15th day of July, 1873. Conley assigned the contract to the plaintiff who furnished the material and constructed the bridge within the time specified. The commissioners refused to pay him therefor, and he thereupon brought an action against them individually to recover the contract pi-ice. Upon the trial the defendants obtained judgment upon the ground that they were not liable individually, and that judgment was subsequently affirmed in the general term and court of appeals. Thereafter, and in 1879, the commissioners of highways caused the bridge to betaken down, and subsequently the material composing it was by them sold and carried away. The plaintiff knew of this as early as May, 1880. He himself testified that he saw the material of the bridge in December, 1879, on the bank, and that he again saw it in Wilson & Stokoe’s possession (the persons to whom it had been sold) in May following.

On the 28th day of February, 1880, he brought another action against the highway commissioners of the town for the contract price of the bridge; and the complaint in that action was verified and served the 11th day of June, 1880, after he had seen the bridge timber and material in the possession of Wilson & Stokoe. The complaint in that action alleged full performance on the part of the plaintiff in the construction of the bridge, and that after the completion of it the same was duly accepted by the defendants, whereby they became indebted to the plaintiff in the sum of $1,000, the contract price, with the interest accrued thereon. Issue was joined thereon and the same went to trial before the court without a jury, and resulted in a judgment in favor of the defendants, the court finding as facts that the plaintiff had fully performed on his part under the contract, but that his claim was barred under the Statute of Limitations.

Subsequently and on the the 5th day of March, 1885, this action was brought; and at the conclusion of the evidence the court directed a verdict for the defendants.

The question is thus presented as to whether the action brought in 1880, against the commissioners of highways of the town, for the contract-price of the bridge, and prosecuting the same to judgment, was such an election of remedies as to prevent the plaintiff from maintaing this action for the conversion of the property.

The rule, as we ‘understand it, is that where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. That the remedies are not concurrent, and where the choice between them is once made, the right to follow the other is forever gone. Riley v. The Albany Savings Bank, 36 Hun, 513, 522; Beloit v. Beale, 34 N. Y., 473; Kennedy v. Thorp, 51 id., 174; Fields v. Bland, 81 id., 239; Wright v. Pierce, 4 Hun, 351; Sanger v. Wood, 3 Johns. Ch., 416; Morris v. Rexford, 18 N. Y., 552; Rodermund v. Clark, 46 id., 354.

It is contended, however, that the rule of election of remedies obtains in the case of sale of goods, where the title passed, subject to be defeated for fraud, or where the plaintiff had obtained possession of the property br some benefit to himself in relation thereto, either by judgment in his favor or by the enforcement of the provisional remedy in the action. But in the case of Rodermund v. Clark (supra), two persons were joint-owners of a sloop; one ignoring the rights of the other, sold the vessel to a third person. After the sale the joint-owner, who had not joined in the sale, retained the possession of the vessel. Thereupon the purchaser libeled the vessel as owner in the United States district court and caused the marshal to seize the same. Thereupon he was permitted to enter judgment by default. Afterwards action was brought by the assignee of the joint-owner who had not sold, against the joint-owner who did sell for conversion. It was held that the joint-owner having elected to assert his rights by retaining possession and refusing to recognize the sale, he and his assignees were precluded from maintaining an action for the conversion; that the sale as to him was not valid, and he had the right to retain his possession of the, sloop, and could have defended that right in the court in which the vessel had been libeled, and that he could not, after having asserted his right by retaining possession, abandon the same and submit to a judgment by default, and then retain his right of action for a conversion; that the two remedies were inconsistent and not concurrent.

In this case it will be observed that the plaintiffs assignor had not obtained possession of the property after the sale. He simply retained that which he before had. He, therefore, acquired no benefit under the election, for immediately after, the sloop was seized by the marshal and the possession taken from him and the judgment, as subsequently entered, was against him. So that he received no benefit or judgment in his favor.

In the case of the Equitable Co-operative Foundry Co. v. Hersee (33 Hun, 169), cited by the plaintiffs counsel, Smith, P. J., in delivering the opinion of the court, says: “The action being upon the contract would doubtless have been conclusive evidence of an election to affirm the same if it had proceeded to judgment, even if the judgment had been adverse to the plaintiff.” In that case the plaintiff, after discovering the fraud, discontinued his action upon the contract and did not proceed to judgment thereon. The court of appeals, in affirming the judgment (103 N. Y., 25; 3 N. Y. State Rep., 100), held “that the mere bringing of an action for the price of goods sold is not a binding election of remedies or a waiver of a right to rescind ttie sale on the ground of fraud, unless the action was brought with knowledge of the fraud.” So that, in order to .constitute a binding election, there must exist a knowledge of the facts upon which the inconsistent remedies may be founded.

The case of Stowell v. Chamberlain (60 N. Y , 272), cited "by the plaintiff, is the only case to which our attention has been called that is in apparent conflict with the cases referred to. But, upon a careful reading of that case, it will be observed that the plaintiff’s contention is not sustained by it. The action was brought to recover the value of the fourteen United States bonds which had been received and sold by the defendant as agent of the plaintiff. The defendant pleaded a former judgment in bar. The first action was for the wrongful conversion of the same bonds, the complaint alleging that they were the property of the plaintiff, and were loaned by him to the defendant, who, without his consent, sold, transferred and converted the same. The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and final judgment was entered thereon. The only question discussed upon review was as to whether or not the former judgment was res adjudícala, and a bar to the subsequent action. The question as to whether the remedies were inconsistent aud as to whether there had been an election between them does not appear to have been raised or discussed. Consequently we cannot consider the case as an authority upon that question.

In the case under consideration it appears that the plaintiff prosecuted to judgment the action against the commissioners of highways after he knew of the conversion of the material composing the bridge. That action was founded upon the contract, and the allegation that the bridge had been fully completed and accepted by the commissioners. In other words, that the title had vested in the town. That action is inconsistent with this, for the reason that this proceeds upon the theory that the title of the bridge remained in the plaintiff, and was in the town or the commissioners of highways.

The plaintiff therefore, by bringing the former action and prosecuting the same to judgment with full knowledge of all the facts, must be deemed to have made his election of remedies, and, having done so, his right to maintain the present action is gone.

Motion for a new trial must, therefore, be denied, and the judgment that was entered upon the verdict must be permitted to stand.

Barker and Bradley, JJ., concur in result; Smith, P. J., taking no part._ '  