
    HARDY v GUARANTEE TITLE & TR CO
    Ohio Appeals, 9th Dist, Summit Co
    No 2370.
    Decided Feb 21, 1934
    Scott A Belden, Akron, for plaintiff in error.
    H. W. Slabaugh, Akron, for defendant in error.
   OPINION

By STEVENS, J.

The sole question here presented is whether or not plaintiff, by filing her proof of claim as a preferred creditor against the receiver of the Abstract Title Guarantee & Trust Co., made such an election as precludes her from pursuing defendant for the unpaid balance of the money due her.

The record discloses that plaintiff’s action against defendant was filed and summons issued on March 30, 1932, and that service of summons was had on defendant on April 4, 1932. The action was hence “commenced,” within the purview of §11231, GC, on March 30, 1932. Thereafter, plaintiff’s proof of claizn was filed with the receiver of the Abstract Title Guarantee & Trust Co.

If the doctrirze of election of remedies has any applicatiozi at all in this case, it is the opinion of this court that, by the filing of her suit agairzst defendant, plairztiff elected to pursue defendant, and that what was thereafter dozre with reference to plaizitiff’s proof of claim against the Abstract Title Guarantee & Trust Co., and payment made thereon, inuz’ed to the benefit of defendarzt, and that defendant cannot therefore be heard to coznplaizi.

We do not find, however, that the two remedies pursued by plairztiff — i.e., suit against defendant and presentation of proof of claizn against the receiver of the Abstract Title Guarantee & Trust Co,— were inconsistent remedies which would warrant application of the doctrine of election of remedies.

“What remedies are inconsistent with each other so as to require or to constitute an election between them, and what remedies are consistent so as not to require or to constitute an election between them is a matter to be determined' by the facts in each case. No arbitrary rule can be enunciated the application of which will cozistitute a decisive test for all cases. Ordinarily, the question of inconsistency znay be determizied by a consideration of the relation of the parties with reference to the rights sought to be enforced as asserted izi the pleadings, or in the relations between the parties which the different remedies suggest, or in the particular status or relation of the parties to the subject matter of litigation. To make them inconsistent orze action must allege what the other deziies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the izicozrsistency of the deznands which znakes the election of one remedial right an estoppel agaizrst the assertiozi of the other, azrd not the fact that the forms of actiozr are different.”

20 C. J., “Election of Remedies,” §8, pp. 9-11.

The evidence irz the instazit case discloses a situation where the affairs of defendant and of the Abstract Title Guarantee & Trust Co. were hopelessly interznizrgled. The conduct of that business was of such a nature that ozre would have been entirely justified izi believing he was dealing with either or both of said companies. The perpetration of a fraud upon customers, under such circumstances, could most easily be accomplished.

We do not believe that the! facts herein proved present a situation where ozre may or should be required to elect, at his pez'il, which coznpany he will pursue to accomplish a satisfaction in full of his claim. In our opinion, the doctrine of election of remedies cannot properly be applied in this action.

It follows as our conclusion that the trial court erred in directing a verdict for defendant, and for that error, the judgment of the Court of Coznznon Pleas will be reversed, and this cause remanded for further proceedings according to law.

WASHBURN, PJ, and PUNK, J, concur in judgment.  