
    FOWLER v. BOWERY SAVINGS BANK.
    
      N. Y. Court of Appeals ;
    
    
      April, 1889.
    [Reversing 47 Hun, 399.]
    1. Election of remedies ; action for debt mispaid.] If a debtor pays the debt to a wrongful claimant, the creditor must elect whether he will sue the claimant or the debtor ; and if ho sues the claimant for money received to his use, he thereby adopts and ratifies the payment (at least by prosecuting the action to judgment), and cannot thereafter, even when unsuccessful in attempting to collect, the judgment, maintain an action against the debtor.
    
    2. Savings banh, mispayment by.} The relation of a savings bank to' a depositor, even though the deposit be expressed to be for the-benefit of a third person, is that of a debtor; and the depositor’s recovery of a judgment against a stranger who wrongfully draws, .the money, is a ratification which discharges the bank ; and it seems that even the bringing of the action has the same effect.
    3. Trust; election, of remedies.} Otherwise of a deposit which remains-the property of the depositor, or of a fund in the hands of a trustee.
    4. Trial; omission to plead, new matter.} The objection that hew matter proved upon the trial is no defense because not alleged in the answer, is not available on appeal if not taken at the trial. If such facts are proved without objection, and found by the trial court, and are sufficient to constitute a defense, they require judgment for the defendant; and judgment to the contrary will beroversed on appeal.
    Appeal from a judgment of the general term in the-second department, affirming a judgment in favor of the plaintiff rendered upon a trial by the court.
    The facts appear in the opinion. ’
    
      The Supreme Court held that a deposit in a savings-bank by a husband in his name in trust for his wife, creates a trust in favor of the latter and passes the title to the depositor as trustee [citing Martin v. Funk, 75 N. Y. 134] and after his death the bank is not protected in a payment to his executor where, before such payment, they have notice-of the claim of the wife [distinguishing Boone p. Citizen’s Savings Bank, 84 N. Y. 83] ; and applied the rule that recovering a judgment against the wrong person cannot beset up as a defense-by the right person, subsequently sued [citing Atlantic Dock Co. v. Mayor, etc., 53 N. Y. 64.]i (The decision below is reported in 47 Hun, 399).
    Defendants appealed to the court of. appeals. • -
    
      Carlisle Norwood\ Jr., for defendants, appellants.
    • Eugene Burlingame, for plaintiff, respondent.
    
      
       See note on Election of Remedies at the end of this case.
    
   Earl, J.

On November 15, 1871, John White, the husband of Elizabeth White, deposited with the defendant, in trust for his wife, the sum of $805.93, and the deposit was entered upon a pass-book, which was delivered to him, in this way: “ Bowery Savings Bank in account with John White for Elizabeth White.” This deposit remained in the bank during the life-time of John White, who died November 13, 1882, leaving a will wherein he appointed John D. Flynn his executor. The will was admitted to probate, and letters testamentary were granted to Flynn on January 23, 1883.

Elizabeth White died December 18, 1882, leaving a last will and testament in which the plaintiff was named as executor, which will was admitted to probate, and letters testamentary were issued to the plaintiff on January 11, 1883.

On January 25, the plaintiff, with his letters testamentary, called at the savings bank and notified it of his appointment as executor, and ■ demanded payment of the deposit. He was told by one of its officers that the money would be paid to him when he came with the pass-book, which was then in the possession of Flynn, the executor of John White. Thereafter, on January 29, Flynn, having in his possession the pass-book, presented the same to the defendant, together with proof that he had been appointed executor of John White, and demanded payment of the deposit, and the defendant thereupon paid the same to him, and the pass-book was surrendered to it. Thereafter, on the same day, the plaintiff called on the defendant again in reference to the deposit, and was informed that it had been paid to Flynn.

This action was commenced in June, 1886, to recover the sum deposited with the defendant, and interest thereon.

It is clear that the plaintiff was legally entitled to receive payment of the deposit from the defendant, and that after the notice and demand by him it had no right whatever to • pay .the same to Flynn ; and but for facts yet to be stated the cases of Martin v. Funk, 75 N. Y. 134; Willis v. Smyth, 91 Id. 297, and Mabie v. Bailey, 95 Id. 206, 209, would be ample authority for the maintenance of this action.

After payment by the defendant to Flynn, the plaintiff, in- the fall of 1883, commenced an action against him to recover, among other.things, the money thus paid. Issue was joined, and the action was tried in the fall of 1884, and a verdict was rendered in favor of the plaintiff, and a judgment was thereon entered. ■ The plaintiff was unable, however, to collect anything on the judgment, and he thereafter commenced this action.

The relation between a savings bank and a depositor therein is that of debtor and creditor, and the defendant therefore became a debtor for the sum deposited with it by John White (People v. Institution, 92 N. Y. 7). After his demand of the deposit, and the payment of the money to Flynn, there were two remedies open to the plaintiff. Fie could sue the defendant as a debtor for the deposit, and recover the amount thereof from it, or he could have brought an action for money had and received to and for his use against Flynn, and recover it from him. But he was not entitled to both remedies at the same time or in succession ; and by electing the one he would lose the other. By electing to sue, the bank he would repudiate its payment to Flynn, and his claim would be that the' debt had not, in fact, been paid. By suing Flynn, he would adopt and ratify the act of the bank in making payment to him, and his claim would be that the money due to him had, in fact, been paid to Flynn, and that Flynn had received it to and fpr his use. Such adoption and ratification of the payment would, legalize the payment as between him and the bank, and thus discharge the bank. Fie could not occupy the position at the same time of claiming that the bank had paid his money to Flynn, and yet that the bank was still his debtor. His election in this case to sue Flynn, and thus to treat him as his debtor, was not harmless to-the bank,'but in law may be presumed to have injured the bank, unless it should now be held to be discharged by its payment to Flynn. After the plaintiff commenced liis action against Flynn, and time ratified and adopted the payment by the bank to him, tíie bank could not during the pendency of that .action, have sued Flynn to recover back the money on the ground that it had been paid by mistake, and received by him without authority, because it would have been a defense to such an action that the real owner of the fund had .adopted and ratified the payment.

But, even if the mere commencement and pendency of the action by the plaintiff against Flynn would have not ■furnished such a defence, it is beyond doubt that, if the bank should now bring an action against Flynn to recover back the money, he could successfully defend on the ground that the plaintiff had ratified and adopted the payment, and thus discharged the bank by the recovery of a judgment ■against him for the money paid as the real owner thereof The two remedies—the one against Flynn and the other against the bank—are not concurrent. If the two actions ■could not be prosecuted at the same time, they could not in succession. Nothing could be more inconsistent than an action against Flynn on the ground that the money due to the plaintiff had been paid to him, and an action against the bank on the ground that it had not paid the deposit, and still remained debtor therefor.

If the money had been absolutely the money of the plaintiff, left on special deposit with the bank, then he could have pursued the money wherever he could trace it without losing his remedy against the bank. In such a case the plaintiff would not be barred of his right of recovery against the bank until he had either recovered his money or the value of the same. All his remedies would be consistent, being based upon the theory of a wrongful disposition of his property. So, too, where a trustee, in breach of his trust, disposes of the trust property, the beneficiary of the trust may pursue it or its proceeds wherever he can trace them, so far as the law will permit him to do so without releasing the trustee. All his remedies in such a case are consistent, and based upon the same theory, to-wit, a breach' of trust; but if a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then, if lie-makes payment to another person, he has not paid the debt, - and the money paid is not in fact the property of the beneficary. In such case the beneficiary may ignore the payment, and sue the trustee as his debtor; or he may ratify and adopt the payment, and sue the person receiving the-money as his debtor: but he cannot do both. There is, in such case, a breach of trust, or not, as he may elect, and his-election, once effectually made, is conclusive forever {Corn. Dig. “Election,” c. 2). If one wrongfully takes and sells personal property not belonging to him, the ownerlias the election to sue him for the proceeds as money had and received to and for his use, and thus ratify the sale, or he may pursue the property and recover it or its value; but he cannot do both, and is bound by his election {Pom. Pern, § 567 eb seg.).

A few authorities may be cited to enforce these views.

In Priestly v. Fernie, 3 Hurl. & C. 977, it was held that where the master of a ship signs a bill of lading in his-own name, and is sued upon it, and judgment is obtained' against him, an action will not lie against the owner of the-ship upon the same bill of lading, although satisfaction has-not been obtained on the judgment against the master. Baron Bkamwell, writing the opinion, said : “ If this were-an ordinary case of principal and agent, where the agent, having made a contract in his own name, has been sued on; it to judgment, there can be no doubt that no second action-would be maintainable against the principal. The very expression that where a contract is so made the contractee basan election to sue agent or principal, supposes he can only sue one of them; that is to say, sue to judgment.”

In Scarf v. Jardine, L. R. 7 App. Cas. 345, the facts-were these: A firm of two partners dissolved. One-retired, and the other carried on the business with a new partner, under the same style. A customer of the old firm sold and delivered goods to the new firm after the change but without notice of it. After receiving notice, he sued the new firm for the price of the goods; and upon their bankruptcy proved against their estate, and afterward' brought an action for the price against the late partner ; and it was held that the liability of the late partner was a liability by estoppel only, and not jointly with the members of the new firm; that the customer might at his-option have sued the late partner or the members of the' new firm, but could not sue all three together; and that, having elected to sue the new firm, he could not afterward sue the late partner. In that case Lord Blackburn said that the cases “are uniform in this respect, that where aman has an option to choose one or other of two inconsistent things, when once he has made his election, it cannot be retracted. It is final and cannot be altered. . . . When once there has been an election to do one' of the two things, you cannot retract it and do the other thing. The election once made is finally made.” Lord Watson said: “The respondent had the undoubted right to select his debtor ; to hold either the old firm or the new firm responsible to him for the fulfillment of the contract; but I know of ne authority for the proposition that the respondent could hold his contract to have been made with both firms, or that, having chosen to proceed against one of these firms for recovery of his debt, he could thereafter treat the other firm as his debtor.”

In Rawson v. Turner, 4 Johns. 469, it was held, that if a new sheriff receives a prisoner from his predecessor, he-is answerable for his escape, though a voluntary escape may have existed in the time of his predecessor; but the plaintiff has his election either to consider the prisoner in execution, and so charge the new sheriff for the last escape, or as out of execution, and charge the old sheriff. If he has once made his election, and sued the old sheriff, and recovered judgment against him, it is conclusive, and a bar to any action against the new sheriff.

In Sanger v. Wood, 3 Johns. Ch. 416, 421, Chancellor Kent said : Any decisive act of the party, with knowledge of his rights and of the fact, determines his election in the case of conflicting and inconsistent remedies.”

In Morris v. Rexford, 18 N. Y. 552, there was a bargain and sale of goods for' cash, and the vendee took possession, but failing to make payment, the vendor obtained a redelivery of his goods by writ of replevin ; and it was held that this was a disaffirmance of the sale, and evidence iin bar of a subsequent action for the purchase-money, and ■that, the vendor having elected the one remedy, his right to pursue the other was extinguished! Comstock, J., writ- ' ing the opinion, said : “ A vendor of goods, on a sale and •delivery, upon cash terms, if he fails to get payment, may consider the delivery absolute, and rely on the responsibility •of the vendee, or he may disaffirm and reclaim his jwoperty; but he cannot do both of these things. The remedies are not concurrent, and the choice between them once being made, the right to follow the other is forever gone. The law tolerates no such absurdity as a seizure of goods by a person claiming that he has never sold them, and an action by the same person, founded on the sale and delivery of the same goods, for the recovery of the price. In peculiar circumstances a party may take either one of these courses, but having rightfully made his choice, the right to follow the ether is extinct and gone.”

So here the law will not tolerate the absurdity of holding that the plaintiff could sue Flynn on the ground that he had received money from the bank belonging to him, and at the same time sue the bank on the ground that it still remained his debtor, and that the money paid to Flynn was not his money, and did not operate as payment.

In Gardner v. Ogden, 22 N. Y. 327, it was held that the "clerk of a broker employed to sell laud, having access to the correspondence between his principal and the vendor, stands in such a relation of confidence to the latter that, if he becomes the purchaser, he is chargeable as trustee for the vendor, and must reconvey or account for the value of the-land ; and, the vendor having brought suit against both the broker and his clerk, making a claim against the broker for having fraudulently sold the land, and against the clerk for a reconveyance or accounting, the court said : In the present case the plaintiff has elected to regard the purchaser as-his trustee, and his complaint, as to him, . . . proceeds on this basis. The plaintiff therefore elects to affirm the sale-made to Smith. He cannot uno flatu affirm it as to him and disaffirm it as to the defendant Ogden. . . . The affirmance of the sale by the plaintiff is a complete answer to the claim for damages against the firm for fraud in,making the sale.”

In Bank v. Beale, 34 N. Y. 473, it was held that when a vendor who has been defrauded in the sale of his goods proceeds to judgment against the vendee upon the contract of sale, after he is apprised of the fraud, his election is determined, and he cannot afterward follow the goods, or the-proceeds thereof, into the hands of a third person on the ground of fraud ; that if a principal, with full knowledge of a fraud perpetrated by his agent, in the disposition of property purchased with his funds, prosecute the agent to judgment for the money so misappropriated, he thereby elects to treat the goods as the property of the agent, and cannot afterward claim their proceeds in the hands of a third party.

In Rodermund v. Clark, 46 N. Y. 354, W. and defendant were joint owners of a sloop. Defendant, ignoring W.’s rights, sold the whole vessel to M. W., after the sale, took and retained possession. .M. thereupon libelled the vessel, as-owner, in the United States district court. She was seized by the marshal, and, M. having obtained judgment by default, she was delivered to him. W. assigned his interest,, and also his claim against defendant, to the plaintiff, who sued for conversion, and it was held that W., having elected to assert Iris rights by retaining possession and refusing to-recognize the sale, he and his assignee were precluded from maintaining an action for the conversion ; that, where a party has an election between inconsistent remedies, he is confined to the remedy which he first chooses. Folger, J., writing the opinion, said : W. had two courses, either of which he might pursue. He could sue the defendant for the conversion, or he could assert his right of possession, by keeping a permanent possession, or regaining possession, if it was interrupted. The effectually taking of either of these two courses precluded him from taking the other.”

In Bowen v. Mandeville, 95 N. Y. 237, it was held that where a party had been induced by fraud to enter into an •executed contract for the purchase of property, he may either rescind and recover back the consideration paid, or affirm the contract and recover damages for the fraud. He cannot have both remedies, as they are inconsistent.

In Cheeseman v. Sturges, 9 Bosw. 246, S., one of the defendants, held real and personal property in trust, to be used for the joint benefit of himself and the plaintiff and a third person, in specified proportions, as co-partners, in a joint enterprise, and under an agreement that he was to make advances for carrying out the enterprise, and that all stocks or other securities than cash which should be received should remain undivided until a final settlement, and that he would not dispose of the property (other than money) without the consent of the others, he accordingly made large advances, and subsequently sold and conveyed all the property without the consent of the plaintiff, and received therefor stock of an incorporated company ; and it was held that the plaintiff, by bringing an action, with full knowledge of these facts, in which he demanded a transfer of his share of the stock, and obtained an injunction against any disposal of it, pending the action, must be deemed to have made his election of that remedy, and be treated as if he had consented to the sale.

. In Mattlage v. Poole, 15 Hun, 556, it was held, in substance, that, where a vendor sells goods to the agent of an undisclosed principal, he may elect whether he will sue the .agent for the price of the goods or the principal, but that he ■cannot have a recovery against both, and that where he has prosecuted the one to judgment he can have no recovery against the other.

In Riley v. Bank, 36 Hun, 513, plaintiff’s intestate^ Mary Biley, had deposited with the defendant upward of •$800. The money was paid to Flannigan during the lifetime of Mary Biley, upon the production by him of the pass-book and Mary Biley’s check. It was claimed that at the time of signing the check Mary Biley was of unsound mind, and incapable of executing the same. After Biley was appointed administrator, he presented a verified petition to the surrogate, under section 2706 of the Code of ■Civil Procedure, charging Flannigan with having corruptly procured an order from Mrs. Biley, knowing her to be insane, and having drawn the'money from the bank, and further averring that he then had the same in his possession, and praying that he be compelled to surrender the same to the petitioner. Flannigan appeared on the return of a citation, and admitted that he obtained the money, from the bank, and that the same.was in his possession, and a decree was entered directing him to deliver the same to the administrator. For his failure to comply therewith, he was committed to the county jail, where he remained until discharged therefrom by the surrogate, because of his inability, from sickness, to bear longer confinement; and it was held that the administrator, by claiming in his petition and procuring a decree of the surrogate’s court adjudging that the money in Flannigan’s hands belonged to the estate of Mary 'Biley, ratified the.act of Flannigan in drawing the money, and could no longer claim that the bank still owed to him the same money, or bring an action against it to recover the ■amount of the deposit; that the administrator had an election to treat Flannigan’s act in drawing the money in two ways, viz., either to ratify or disavow it; that, having elected to ratify it, he could not thereafter disavow it. That case was appealed to this court, and the order of the General Term, reversing the judgment in favor of the plaintiff, was-here affirmed (103 N. Y. 669). The following authorities-are to the same effect: Curtis v. Williamson, L. R. 10 Q. B. 57 ; Clough v. London & N. W. R. R. Co., L. R. 7 Exch. 26 ; Raymond v. Proprietors, etc., 2 Metc. [Mass.] 319; Sears v. Carrier, 4 Allen, [Mass.] 339 ; Cobb v.. Knapp, 71 N. Y. 348 ; Moller v. Tnska, 87 Id. 166.

This extended examination of the authorities has seemed necessary on account of some difference of opinion upon the-question considered which at first existed among the members of this court. It is seen that they justify the conclusion that plaintiff’s election to "sue, and his recovery against' Flynn, furnished a defense to this action.

It is, however, objected on the part of the plaintiff that, the defense that the bank had adopted and ratified the payment to Flynn is not set up in the answer; and such is the-case. "While the defendant alleges in its answer payment to-Flynn, it does not allege that payment was made by the authority of the plaintiff, or that he ratified or adopted it. But there was no such objection upon the trial. All the-facts pertaining to that defense were proved without objection. There was no dispute about the facts, and they were-found by the court. Hence the objection that the answer is-defective is unavailable here.

We are therefore of opinion that the judgment should-be reversed and a new trial ordered, costs to abide the event..

All the judges concurred, except Rugeb, Ch. J.

Ruger, C. J. (dissenting).

I am unable to concur in the-opinion delivered in this case. I am of the opinion that the-prosecution of Flynn by the plaintiff’s intestate was not a ratification of the payment by the bank to him. Flynn, in obtaining such payment, neither represented, nor assumed to-represent, Mrs. White, and the bank'did not pay the money to Flynn as the agent or representative of Mrs. White, but, dealt with him as a claimant of the money in his own right. Under such circumstances there could be no ratification. Ratification isa branch of the law of agency, and cannot bo held to have occurred unless there is a principal and an act assumed to have been done by some one in his name or on his behalf (Story Ag., § 251; Farmers’ Loan & Trust Co. v. Walworth, 1 N. Y. 433). There were consequently no econcurrent remedies, and no occasion for an election by the plaintiff.

Judgment reversed.

Note on the Rule that Election once made is gone

FOREVER.

Most of the cases on this rule are characterized by a singular silence as to the reasons which support it.

While the principal applications of the rule must doubtless be regarded as settled by authority, beyond question at least, in any other than a court o£ last resort, there is so much conflict of opinion on many aspects of the subject, as to make an inquiry into the reason of the rule our best guide to sound conclusions in all doubtful cases. It will be found, I think, by those who examine the various classes in which the cases arrange themselves, on a proper analysis, that in several of them the reason is clear, and conflict of authority ought to cease. In others the reason is not apparent, and it may be that the unreasoning application of a traditional maxim has led to an erroneous extension of the rule ; and that, so far as paramount authority leaves us free to consult the justice of the result, the rule should not be applied to cut off just relief without just reason in addition to the mere existence of the maxim.

The principal classes of cases in which the reason of the rule is adequately clear, are the following :

I. Options in contracts, wills and statutes.] If a contract gives to one party thereto his choice of alternatives without clearly securing to him the right of a continuing or repeated choice, his election once made is gone forever. The reason is that all that was secured to him was his choice, and he has had his choice ; the stipulation is satisfied ; he has no more right to a second choice of the same alternative than he would have to a second payment of the same sum. (See cases 1-4, 6, 7, lelow). The same principle applies to statutes giving an option. (Case 5).

_ It seems probable that the clearness of the rule in the application of it to express options, has led to its acceptance as a sort of universal maxim applicable to non-contractual and contractual rights indiscriminately and without qualification, and hence to its blind and unthinking application to some cases where the lights are really not alternative but legally and equitably concurrent; or, if alternative, yet such that the party has a right to the process of the court, and, it may be, to judgment, to guide him in making his election.

Where the option is expressly given by a contract, the exercise of it is conclusive irrespective of knowledge of the facts rendering such choice desirable or undesirable, and irrespective of whether the other party has been misled or prejudiced. The election being itself a contractual act, it is binding without any estoppel, and it is revocable for mistake only upon the same grounds that any contractual assent is revocable ; and even the right of revocation when it exists does not necessarily imply the right to choose again.

Akin to this class of cases are those where a gift is offered. A gift takes effect by the assent express, or implied, of the donee, and if he rejects it the offer of the donor is at an end. Upon the same principle, if the donee has a claim incompatible with the right of the donor to give his assertion of that claim instead of absenting to the gift may bar his right under the gift. It is not necessary here to show an estoppel. His rejection of the gift gives a right to those who are entitled to take it if there be no gift. (Cases 11-16, below.) Biit in the absence of estoppel excusable ignorance of the facts often allows a second election.

II. Opportunity to reconsider assent.] Where a party to a contract has by operation of law an opportunity to reconsider his assent,—as where the contract was made when he was an infant, and on coming of age he may give or withhold assent, or where he learns that' his original assent was voidable for fraud, or has become revocable by breach of a condition,—his election once made is gone forever, because the election is a contractual act.. During a brief reasonable period the contract was held in suspense, being still binding on the one party and open as to the other. The law makes him an offer, so to speak, which he may, by a fresh assent accept, and render the contract binding upon both sides ; and retaining the fruits of the contract is usually such an assent. (See cases 17-38, below.)

Here knowledge of the facts is usually material, but estoppel, that is to say prejudice to the other party by allowing retraction, a second election is not.

III. Undisclosed principal; dormant partner j change in firm.) The right of election which a creditor has when he Gnds that dealings in which he gave credit were really for the "benefit of persons not at the time known to him involves some qualifying principles. Here knowledge is material to make the act an election, but estoppel may preclude the right to elect. (See cases 39-45.)

IV. A ratification or toaiver.'] Where one having apparent authority or right acts beyond his powers, the person standing in the apparent relation of principal has an election whether to adopt the contract, or to repudiate it and proceed in disregard of it; and in this case election to adopt the act once made is gone forever. The reason is that this is a ratification, and it relates back and supplies the original want of authority. (Cases 46-63 below.) A ratification or waiver needs no new consideration ; it is an authority given nunc pro tunc. •But it is necessary to show that the party claimed to have ratified or acquiesced had full knowledge of the facts. (Cases 65-69.)

The significance of the case in the text is in applying this principle of ratification or waiver to the relation of debtor and creditor ; and in holding, as many other cases do, that preju- ■ dice may be presumed ; though'the general rule as to estoppel requires the party claiming estoppel to prove that he would be prejudiced.

In respect to this class of cases of election by ratification, it is to be observed that a distinction is recognized between ratifying and refusing to ratify. A refusal to ratify does not necessarily estop the party from subsequently changing his mind before the other has changed his position, and electing to ratify. An election not to ratify does -not necessarily exhaust the right of election. To have that effect circumstances of assent to the disclaimer or of equitable estoppel must usually be shown. (See case 64, below.)

V. Equitable estoppel.] If a party having alternative or oven concurrent rights, expressly or practically disclaims one of them under circumstances such that the other party is led to believe that he will not claim that one, the former may be equitably estopped from afterward claiming it upon the familiar principle of equitable estoppel; but this result may be reached irrespective of any question of election, and solely on the ground of a waiver made conclusive by estoppel.

In this class of cases it is not necessary to show that the one sought to be estopped had knowledge of the facts. It is enough to show that he intended the other to act on his disclaimer.

• Cases of this class do not necessarily belong to the doctrine of election ; but they should be noticed here because many involve both elements.

VI. Estoppel by adjudication.] Many of the cases in the books, put upon the ground of the maxim that an election, once made is gone forever, are really nothing more than an application of the rule that an adjudication concludes all controversy on the questions adjudicated. It adds little to the force of this rule, to say for instance, that if one elects to take judgment establishing the fact that defendants acquisition of goods from plaintiff was a purchase, his right is gone forever to claim that the act was a conversion and not a purchase. But is it correct to say so ? Is it the election to sue as on contract or the adjudication establishing the contract-which concludes the party ? Suppose after such a judgment is recovered, it is reversed -on appeal and on a new trial the contrary is established. If the rule here res.ts on election the-reversal of the judgment cannot alter it. It is only when we place the rule in this class of cases on the adjudication and not on the election, that a reversal or vacatur of the judgment can leave the question open.

For the rule that the estoppel of a judgment is set at large-by reversal, see Smith v. Frankfeld, 77 N. Y. 414 ; aff’g 13 Hun, 489.

VIL Inconsistent positions before the court.] On grounds-of public policy it is held that a suitor cannot usually be heard to allege and deny the same thing at the same time, or in the same controversy. The court sits to investigate the truth and requires to be aided, not to be paltered with by the suitor. If' he is doubtful of the fact he may, within certain reasonable limits, allege it in the alternative or hypothetically, and use the process of the court to clear up the doubt. If his counsel is doubtful as to the proper relief he may, within due limits, ask alternative relief, and postpone the election between them to the time of judgment. But if he chooses to affirm a fact, especially under oath in pleading, as the ground of asking" the interposition of the court, or to demand one sole relief, the court properly treat him as having made his election, and need not stay to let him allege or claim the contrary. This subject is illustrated in a noto in 22 Abb. N. C. 268 ; and see-cases 78, etc.

VIII. Forensic estoppel.] The rule of judicial policy just stated becomes developed into a matter of right of the ach erseparty, when he who nas made a representation to the court, has thereby procured a decision unfavorable to his adversary. In such a case, irrespective of whether the decision was an adjudication constituting a technical estoppel by the record, the party prejudiced by such representation has a right to-have him who made it held to it afterward. (Oases 85-87.)-This, for want of a better name, we may call a Forensicestoppel. It is not material whether the party had full knowledge of the facts when he chose to raise the objection, nor need it be proved that the other party was misled; .although these facls are doubtless proper for the court to consider on the question of allowing relief in its discretion.

IX. Other cases.] In a case not falling within anv of these classes, it is well worth considering whether the rule that election once made is gone forever, is not, to some extent ■at least, a tradition of common law procedure, and whether the case in hand is one which, upon equitable principles, allows concurrent relief ; and this inquiry is the more important when the transaction is in fact a tort or fraud, where to hold the injured party to an election in advance of the results of taking testimony is often to give to the wrongdoer the advantage of requiring his pursuer to take a leap in the dark.

Notes oe Oases.

The following cases will afford convenient clue to others.

I. Option given Try contract, will or statute.

1. An election under an alternative contract, if once made is irrevocable. Dinsmore v. Duncan, 57 N. Y. 573; s. c., 15 Am. R. 534, with note; rev’g 4 Daly, 199. (Holding that an indorsement by the holder of negotiable government bonds, which by their terms were convertible into non negotiable bonds,—manifesting the holder’s election to convert, followed by delivering them to an express company for transmission for conversion, was an election which rendered them n on-negotiable.

Opinion by Dwight, Oomr.

2. An agreement was made that plaintiff should sell defendant a quantity of cotton, to be delivered, at seller's option, in August or September. Plaintiff gave notice that the cotton was ready for delivery on a certain day in August, but afterwards refused to deliver during August.—Held, on demurrer, that he was bound by this election, of •which he had given notice, and could not afterwards alter it. Each. 1865, Gath v. Lees, 3 H. & C. 558.

3. Defendants, an insurance company, being bound by their policy .either to pay indemnity or to reinstate building, elected the latter. Having afterward refused to proceed t.o reinstate, and being sued, they set up as a defense that reinstatement had become impossible (owing to action on the part of the public authorities). Held, on demurrer, not a sufficient defense. Dictum that their election once made they were bound by it. Q. B. 1859, Brown v. Royal Ins. Co., 1 Ell. & Ell. 853.

4. Implied election. The fact that a party who received notes subject to an election to cancel them on certain terms, or enforce them as he might prefer, transferred them absolutely to a third person,— Held, under the circumstances, to amount to an election to have the-notes enforced. Ct. of App. 1864, Oatman v. Taylor, 29 N. Y. 649.

5. Election under statute.] The charter of a turnpike company-authorized the erection of a toll-gate “in the most convenient place, to-be by i hem determined. ”—Held, that this power of locating the gate was-exhausted when once exercised, and that the company had no authority subsequently to change the location. [Citing Griffin v. House, 18 Johns. 397.] Conn. 1834, State v. Turnpike Co., 10 Conn. 157.

6. Transfer of option to other party.] Where defendant had the-option to pay at the rate of 4% cents in gold or 9 cents in currency, and failed to exercise it before the debt became payable,—Held, that the right to elect passed to plaintiff; and that he was bound by his election when made. 1871, Stephens v. Howe, 34 Super. Ct. (J. &. S.) 133.

7. If a party is bound to make his election, by performing one or other alternative by a certain time, and suffers the day to pass without performing, he loses his election, and the other party may elect for himself. Supreme Ct., 1811, McNitt v. Clark, 7 Johns. 465.

8. Application of payments.] It has been held that a credit of a payment upon a particular debt, in the private account books of the-creditor, uncommunicated to the debtor, does not bind the creditor to-apply it to the debt [2 Barn. & C. 65], although it binds the debtor, if the creditor adheres to his intention; but if the fact that the payment has been thus credited is communicated to the debtor, he becomes entitled to hold the creditor to it. Supreme Ct., 1846, Allen v. Culver, 3 Den. 284.

9. The creditor is not hound to make his application immediately, but may make it within any reasonable time. He is, however, bound by it when it has been made. Id.; Circ. Ct. 1829, Pattison v. Hull, 9 Cow. 747.

10. Charge on fund.] An administrator having in his verified account presented to the surrogate, included, in the moneys paid by him to the next of kin a sum paid to his brother,—Held, that he had' made his election as to the fund out of which the sum should be paid, and was thereby precluded from afterwards applying it as against the-trusts received from the realty. Ct. of App. 1878, Wright v. Wright, 72 N. Y. 149.

11. Claiming under gift or in hostility to it.] One who elects to-take under a will rather than by another and inconsistent right (which-election is implied by the enjoyment of the estate devised and by-conveying and selling the land), and those claiming under him, ar& bound by such election. Sup. Ct. of N. C. March, 1889, Borden v. Ward, 9 Southeast. Sep. 300.

12. If he elects to claim in hostility to the will, he can take nothing under the will. Havens v. Sackett, 15 N. Y. 365 ; Hawley v. James, 16 Wend. 61, 254.

13. Appellant wrote his wife’s will, and (the executor having renounced) letters of administration cum testamento annexo were granted to him and another. He (with the other) acted as administrator for over two years, filed an account, and was allowed commissions for a sale made. After this he filed (in the office of the register of wills) an election to take the real estate of Ms deceased wife as tenant by the curtesy and against the will. Meld, that he had already made his election and that it was too late for him to change his mind. The court say: “ We decide the case, not upon the ground of estoppel, but upon that of election. A case so clear requires neither argument or authority. (Pa. Mar. 1889,) Appeal of Scholl, 17 Ail. Sep. 206.

14. A widow who accepts a testamentary provision expressed to be given in lieu of any other share or interest in testator’s estate, cannot thereafter claim to share in a fund as to which he died intestate. Chamberlain v. Chamberlain, 43 N. Y. 424; afi’g in part, 3 Pans. 348.

15. The fact that a widow who elected to take a provision in lieu of dower has not received payment thereof, does not entitle her to reconsider her election.' Kennedy v. Mills, 13 Wend. 553.

16. Where a testator devises portions of his property to one person, and a residuary estate to other beneficiaries, which necessarily embraces property claimed by him, but in which the former beneficiary claims to own an interest, the acceptance by such beneficiary of the provision of the will, with knowledge of the fact that the testator has thereby disposed of the property in which he claims an interest, will be held to be an election by him to take under the provisions of the will instead of asserting or pursuing a claim to the property devised or bequeathed to the residuary legatees. The election to take under the will equitably estops the devisee from maintaining an action to reform the deed to the testator. Supm. Gt., 1886, Haack *. Weicken 42 Run, 486.

II. Opportunity to reconsider assent.

17. Affirmance of voidable contradi] One cannot experiment upon a contract void for fraud, by trying to enforce it with knowledge of the fraud, and, that result being unsatisfactory, seeking at last to rescind it. Ct. of App., 1884, Acer v. Hotchkiss, 97 N. Y. 395.

18. If a seller of goods, who has been defrauded in the sale, proceeds to judgment against the buyer, upon the contract of sale, after . he is apprised of the fraud, his election is determined, and he cannot afterward follow the goods, or the proceeds thereof into the hands of a third person, on the ground of fraud. Thus proceeding by a creditor’s bill, on a judgment for the price, is an affirmance of the sale ; and the complainant cannot, after answer, have leave to amend so as to repudiate the sale and reclaim the goods. Chan. 1834, Lloyd v. Brewster, 4 Paige, 537.

19. The bringing of an action for the price of goods sold,—Held, to be a waiver of the right to reclaim the goods, so as to make the sellers liable to a subsequent purchaser from their buyer, for conversion in attaching the goods, and selling them on execution against the first buyer. Supm. Ct. 1875, Wright v. Pierce, 4 Hun, 361 ; s. c., 6 Supm. Ct. (T. & C.) 651. (It was here further held that the seller’s election to treat a conditional sale as valid, operates by relation back to confirm the title of an intermediate mortgagee from the buyer.)

20. If a person who has an election between bringing an action for deceit and an action upon a contract thereby induced, knowingly receives a benefit to any extent upon the contract, he waives the right of action in tort. 1882, McCall v. Proal, 48 Super. Ct. (J. & S. 403.

21. Contract to build; and conversion of materials.] Under the rule that where there exists an election between inconsistent remedies, the party is confined to the first remedy which he first prefers and adopts, and where the choice between them is once made, the right to follow the other is forever gone,—Held, that a contractor to furnish a bridge to a town, who had brought an action against the commissioners to recover the value thereof, in which he had been defeated by the plea of the statute of limitations, could not thereafter maintain an action for the conversion of the materials constituting such bridge by the town authorities, where the acts alleged to constitute such conversion had been committed, to his knowledge, before the bringing of the prior suit. Supm. Ct. 1887, Boots v. Ferguson, 46 Hun, 129.

22. Land contn'act.] Defendant gave certain notes to plaintiff’s agent, under an agreement, one of the terms of which was that if a certain deed were not delivered to him, the notes were to be returned. The deed was not delivered within a reasonable time.—Held, however, that he could not now set up his right to repudiate the contract, as he had hitherto given no evidence of a disposition to rescind the bargain and reclaim his notes, and had made an agreement to sell the land to a third person in consideration that the latter should assume or redeem them, which showed that he considered his notes still binding. The election thus evidenced to treat the contract as still existing was final. Sup. Jud. Ct. Co. Somerset, 1830, Brinley v. Tibbets, 7 Me. 70.

28. Fraud.] An election, with knowledge of fraud vitiating a sale, to disaffirm the sale and recover the property, held to be binding and irrevocable. Ct. of App., 1881, Moller v. Tuska, 81 N. Y. 166.

24. A plaintiff claiming fraud in a sale, and suing for the agreed price before the credit allowed has expired, thereby affirms the contract. and must wait till the credit expires. Dellone v. Hull, 47 Md. 112 (See also Kellogg v. Turpie, 2 Bradio. (Ill.) 55; Ferguson v. Carrington, 9 B. & C. 59.

25. Demand and part payment.] Action for money had and received and for conversion.—The conversion complained of was an .alleged tortious sale by the defendant of some hops. The plaintiff having, before the suit, waived the conversion and claimed the proceeds of the sale (part of which were paid him), Held, (on demurrer) that he could not now assert the tort and bring conversion. He was concluded by his election in claiming the proceeds. Exch. 1869, Lythgoe d. Vernon, 6 H. & N. 180.

26. Contract that might have been reformed.] A party having elected to sue upon a written contract as it is, and having been defeated, is bound by that election, and cannot thereafter maintain an action to reform the contract. [Citing Washburn v. Ins. Co., 114 Mass. 175.] The court- say that the judgment on the written contract ‘ operates as an estoppel in all other courts.” Ct. of App., 1879, Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498; s. c., 33 Am. R. 655 ; aff’g 12 Hun, 640.

27. Conditional sale.] Defendant had delivered chattels to plaintiff under a contract prescribing conditions of payment, and no title was to pass to plaintiff till payment was made in full. The plaintiff failing to pay as agreed, defendant had brought an action on the contract and recovered judgment; which remaining unsatisfied (except a small sum) defendant carried off such of the chattels as he could find. The plaintiff thereupon brought this action for commission in which he recovered (on appeal), it being—Held, that in bringing action on contract against plaintiff defendant had elected to treat the transaction as a sale so that title passed to plaintiff. Bailey v. Hervey, 135 Mass. 172 (1883.)

28. Is an action on the contract before judgment an election?] The pendency of an action upon contract, for goods sold and delivered, will not prevent bringing an action for the conversion of the same goods. Plaintiff may have two remedies in such a case; and an adjudication in an action brought to obtain either, whether for or against him, may be a bar to the other; but at any time previous to such an adjudication he may discontinue the first action and proceed with the second. N. Y. Superior Ct., 1866, Wright v. Ritterman, 4 Robt. 704; s. c., 1 Abb. Pr. N. S. 428. The reason assigned is that until judgment the plea is to the form of the remedy, in abatement of the action, but after judgment it is in bar.

29. But in People ex rel. Ritterman v. Kelly, 1 Abb. Pr. N. S. 432, it was held that declaring on contract was an election of that remedy, and although the action did not go to judgment, plaintiff could not, on discontinuing it, bring an action for tort. Hence the defendant,, having been discharged from arrest in respect to the cause of action in the first action was entitled on habeas corpus to be discharged from arrest in the second action.

30. The bringing of ail action of assumpsit upon a contract of sale of goods, and discontinuing the same before proceeding to judgment, does not preclude plaintiff from maintaining an action on the case for fraud and deceit on the part of the buyer inducing the making of the-contract on the part of the seller. Brumbach v. Flower, 20 Ill. App. 219.

31. Disaffirmance.] If a vendor who is entitled to rescind the sale and retake possession of goods delivered, actually elects to do so-instead of proceeding to collect the price, he disaffirms the sale, and cannot afterwards sue for the price. The remedies are not concurrent, and the choice between them once being made, the right to follow the-other is forever gone. [1 Wend. 404; 7 Id. 454 ; 11 Id. 467; 13 Johns, 121; 3 Johns. Ch. 416; 2 Shep. 364; 1 N. Y. 496.] Ct. of App., 1859, Morris v. Rexford, 18 N. Y. 552.

32. Commencing suit is disaffirmance.] A vendor’s election todisaffirm a cash sale, for non-payment, is conclusively exercised by issuing a writ of replevin, and causing the property to be taken and delivered on it. 75.

The court say:—“The law tolerates no such absurdity as a. seizure of goods by a person claiming that he has never sold them, and an action by the same person, founded on the sale and delivery of the same goods, for the recovery of the price. In peculiar circumstances a party may take either one of these courses, but having rightfully made his choice, the right to follow the other is extinct and gone. [Citing Littlefield v. Brown, 1 Wend. 398,404 ; s. c., 7 Id. 454; 11 Id.. 467 ; McElroy Mancius, 13 John. 121 ; Sanger v. Wood, 3 John.. Ch. R. 416, 422; Junkins v. Simpson, 2 Shepley, 364; Butler v. Miller, 1 N. Y. 496.]” [Compare contra, cases 28 and 39.]

33. In such case it is not proper to instruct the jury, in ah action-for the price, that the fact of having reclaimed the goods is a circumstance tending to show that there was no sale. They should be instructed that it was a positive disaffirmance. Morris v. Rexford, 18 N. Y. 552.

34. Where a sale has been induced by the fraudulent representations of the purchaser, the seller has a single cause of action only. He may .elect to affirm the contract, waive the tort and recover the contract price, or to disaffirm the contract, sue in tort, and recover such of the goods as can be replevied, and damages for the conversion of the remainder, and the pendency of an action of replevin is a good defense-to an action for the value of that part of the goods not actually replevied, although plaintiffs served in the replevin action under Code Civ. Pro., § 1719, a notice abandoning so much of their claim therein as related to the goods not replevied. [Following Moller v. Tuska, 87 N. Y. 169; citing Wright v. Pierce. 4 Hun, 351; s. c., 6 Supm. Ct. (T. &. C.) 651; Bowen v. Mandeville, 95 N. Y. 237 ; Morris v. Rexford, 18 Id. 552 ; and distinguishing Powers v. Benedict, 88 N. Y. 605 ; Hersey v. Benedict, 15 Hun, 282.] Supm. Ct., 1885. Wile v. Brownstein, 35 Hun, 68. Hardin, P. J., dissented.

35. Delay is an election.] Upon the discovery of a fraud, the-party defrauded has a right to pursue either one of two alternatives, namely; either to restore what he has received in the transaction and claim restoration to the position occupied by him before the agreement, or to keep what he has received and prosecute the defendant for the damages alleged to have been sustained by the fraud. The right to-rescind the contract for fraud must be exercised immediately upon its discovery, and any delay in doing so or the continued employment, use- and occupation of property received under the fraudulent contract will be deemed an election to affirm it [citing Schiffer v. Dietz, 83 N. Y. 300], but will not bar an action to recover damages. Ot. of App., 1886, Strong v. Strong, 102 N. Y. 69. It was here held that it -was no bar to the present action that the plaintiff had taken proceedings to-vacate surrogate’s decree on account of the fraudulent representations, which proceedings were unsuccessful; for the plaintiff had then lost her right of election.

36. A principal sued his agent to recover the proceeds of two notes intrusted to defendant to sell, in reliance upon his representation that the notes had been sold, and recovered judgment by default. He then discovered that defendant had the second note in his possession when the action was commenced. Held that he then had a right to elect to-sue for conversion. But—although he procured the judgment to be vacated he did not discontinue but proceeded to take evidence ; and also commenced an action against defendant for the conversion of the-second note. By his answer in the second suit defendant pleaded the pendency of the former suit. After notice of trial of the second action had been served, and a year after he discovered the facts, plaintiff amended his complaint in the first action so as to limit it to ■the first note. Meld, that the election came too late; and that defendant’s plea in abatement in the second action was good. Bowker Fertilizer Co. v. Cox, 106 N. Y. 555.

37. Forfeiture.] Plaintiff had served a declaration in ejectment, on the ground of forfeiture by breach of covenant; but the action was not carried through. Meld, that this was a conclusive election to determine the lease, and that he could not recover in his present action for breach of covenant (including a covenant to pay rent). The court assumes the general principle that an election once made is conclusive. They also say'(per Pabke, J.) : “ After such an act, by which the lessor treats the lessee as a trespasser, the lessee would know that he was no longer bound to consider himself as holding under the lease, and bound to preform the covenants contained in it, and it would be unjust to permit the landlord again to change his mind, and hold the tenant responsible for the breach of duty, after that time ” Exch. 1846, Jones v. Carter, 15 M. &. W. 718. (See also Grimwood v. Moss, L. R. 7 C. P. 360.)

38. Waiver of forfeiture!] Defendant being tenant of plaintiff broke covenant not to underlet, thereby incurring a forfeiture (1854). In 1857 plaintiff began action to recover arrears of rent, from 1854-57. •On May 16 the action was referred to a master by order of the judge, .and on the same day plaintiff brought an action of ejectment. On May •23 the rent was paid. Meld, that by bringing an action for rent, plaintiff conclusively waived the forfeiture, and could not bring ejectment.

The court say: “ The tenant must under those circumstances be induced to consider himself still tenant, and could not conceive himself liable to be dealt with as a trespasser.” And it is said that if ejectment ■could be maintained, the gross inconsistency would result that plaintiff, having recovered rent, could also recover the land itself and mesne profits to time of verdict. C. P., 1858, Dendy v. Nicholl, 4 C. B. N. S. 376. (See also Croft v. Lumley, 6 H. L. Cas. 672.)

III. Undisclosed principal; and change of firm.

39. Bringing action.] The subsequent disclosure of his principal by an agent having made a purchase for an undisclosed principal, and the bringing of an action by the vendor against such principal after .such disclosure, is not conclusive of an election on the part of the vendor to hold the principal upon the contract of purchase and discharge the agent. [Citing Beymer v. Bonsall, 79 Pa. 298, which see

[It does not appear from the report whether the disclosure relied upon was before or after the commencement of the action against the agent, but the court below seems to treat this as immaterial. 42 Super. Ct. (J. & S.) 91, 99.]

40. Plaintiff entered into a contract of sale with C., who was really agent of defendant, and who disclosed principal’s name at time of contract. The written contract itself, however, was in the name of 0, alone. Held, that so making the contract was not conclusive election to hold C. (agent) alone liable, but that defendant (principal) might also be sued—in the absence of evidence that plaintiff at time of contract gave credit to C. alone. Exch. Ch., 1871, Calder v. Dobell, L. R. 6 C. P. 486.

41. A firm of two partners dissolved, one retired and the other carried on the business with' a new partner, under the same style. A customer of the old firm sold and delivered goods to the new firm after the change, but without notice of it. After receiving notice, he sued the new firm for the price of the goods, and, upon their bankruptcy, proved against the estate, and afterward, brought an action for the price against the late partner. Held, (reversing decision of court of appeal, [who had treated the case as one of novation]), that the liability of the late partner was a liability by estoppel only, and not jointly with the members of the new firm ; that the customer’ might, at his option, have sued the late partner or the members of the new firm, but could not sue all three together; and that having elected to sue the new firm, he could not afterward sue the late-partner. Scarf v. Jardine, L. R. 7 App. Cas. 345.

42. Undisclosed principal.] Where the purchaser from an agent who did not disclose his principal sues both, this does not constitute an election to hold the principal and discharge the agent, no judgment having been entered against the principal. [11 Eng. R., Monk’s notes, 149; 3 Duer, 368, 369; 74 Penn. 298, 300 ; distinguishing 4 Johns. 469.] Supm. Ct., 1878, Mattlage v. Poole, 15 Hun, 556.

43. It seems, that no legal proceeding by a purchaser against an undisclosed principal, short of judgment, will constitute a conclusive-election, and prevent him from resorting to an agent’s liability. [11 Eng. R. Moak’s notes, 149 ; 3 Duer, 368, 369.] Ib.

44. Oath to claim.] Plaintiffs sold B., in his own name, but really as agents of the defendants, certain goods. After learning that defendants were the principals, plaintiffs filed affidavit of proof against the estate of B., who was insolvent. Soon after this they commenced an action against the defendants. Held, that the filing of the affidavit, was not in point of law a conclusive election by plaintiffs to treat B , as debtor, so as to preclude them from maintaining an action against his-principals. Q. B. 1874, Curtis v. Williamson, L. R. 10 Q. B. 57.

46. Judgment.] In the case of an undisclosed principal, both principal and agent may be proceeded against, separately, but a judgment against one, though unsatisfied, will bar an action against the other. Weil v. Raymond, 142 Mass. 206; s. c., 2 New Eng. Rep. 596 (1886).

IV. Ratification or waiver.

46. Affirmance—of act of corpoi'ate officer.] The relations of a bank -with its cashier are analogous to those of a principal with his agent; and the principles governing the right of disaffirming unauthorized acts of an agent are applicable to similar acts of a cashier. Hence, where a cashier wrongly discounted his own notes, and purchased wheat with the proceeds, and, on being removed therefor, deposited with the bank, to pay the notes, money enough to do so,—Eeld, that while the bank, on discovering his wrongful act, had the option either to require a return of the funds unlawfully taken, or a surrender of the property purchased with them, it could not receive its funds and also reclaim the wheat, nor could it assert a right to the profits of the adventure, if any were made, and at the same time repudiate its possible losses; that the election once made was irrevocable, and when the plaintiff, with knowledge of all the facts, accepted the funds, it surrendered all interest in the wheat, and was not entitled to ^the profits. [Citing Farmers’ Loan & Trust Co. v. Walworth, 1 N. Y. 433 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 Id. 30 ; Boerum v. Schenck, 41 Id. 182.] Ct. App. 1883, Second Nat. Bank of Oswego v. Burt, 93 N. Y. 233 ; modifying, 14 Weekly Dig: 290.

47. — joint owner.] The rule that where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts, applies where a party whose half interest m a vessel is sold against his will, retains possession of the vessel after the sale; and he cannot sue for a conversion after the purchaser has recovered possession by suit and default. After retaining possession he can not change his position, and recognize the sale as having effected a conversion. Ct. of App., 1871, Rodermund v. Clark, 46 N Y., 354; s. p., Goss v. Mather, Id., 689 ; aff’g 2 Lans., 283.

48. — partner.] A partner who with full knowledge of all the facts brings an action against á co-partner to enjoin him from disposing of stock in a corporation, which defendant had purchased with the proceeds of partnership property without the consent of plaintiff, must be deemed, for the purposes of the suit, to have made his election of this remedy, and must be treated as if he had consented to the sale of the partnership assets. (“It is settled law,” says Bosworth, Oh. J., “ that a party prosecuting two suits at the same time, upon the same -cause of action, seeking in the one, relief inconsistent with that sought in the other, will bo compelled to elect which remedy he will pursue.”) N. Y. Superior Ct. 1862, Cheeseman v. Sturges, 9 Bosw. 246; to similar effect was a previous decision in s. c., 6 Id. 520.

49. -—of power assumed, by executors.] An insurance policy on the life of May, Sr., was payable to his wife and children. May, Sr., died leaving a will in which (so far as he could do so) he authorized his -executors 'to collect the policy and apply the proceeds in certain ways. The executors having collected, the children filed a bill against .them, resulting in a decree establishing the children’s right to the proceeds of the policy. While the bill was pending, defendant in error brought an action against the insurance company. litId, that the action could not be maintained, as the owners of the policy had elected to ratify the act of the executors, by virtue of which election alone the money in the hands of the executors became the money of the children, whereby they were entitled to the decree rendered in their favor. The decree having adjudged the money theirs, the policy was extinguished, and the remedy now sought was inconsistent with that formerly sought and obtained. Defendant in error was estopped by his election; for if he could maintain the present action, the insurance company would be barred by the statute of limitations from recovering from the executors. (Ga., Apr. 1889) Equitable Life Ins. Co. v. May, 9 Southeastern Sep. 597.

50. —of act of receiver. ] The receiver of an insolvent bank acted beyond his authority in transferring certain securities belonging to the bank. Held, however, that the bank affirmed the action of the receiver by proceedings on his report which stated these transactions, and stated that his bond was sufficient security in case he were liable, .and by failing to give notice to the debtors of intention to look to them for payment; and that the bank was concluded by this election. U. S. Super. Ct. 1866, Brown r. Bass, 4 Wall. 262.

51. ■—of son.] This suit was brought to recover from defendant for -enticing away and harboring plaintiff’s minor son. Plaintiff had previously sued in assumpsit for his son’s-wages (on the basis of an implied contract) ; the case went before a jury, which however disagreed, and the case was discontinued. Held, that an election between inconsistent remedies is final. Plaintiff’s first proceeding necessarily implied that is son’s services were with plaintiff’s consent, which was absolutely repugnant to the foundation of this suit, viz., that the son was induced to enter defendant’s service against plaintiff’s assent. Plaintiff was therefore precluded by his election from maintaining this action. Thompson v. Howard, 31 Mich. 309 (1875).

52. Money paid in consequence of fraud.] The maker and the first and second endorsers of a note having been charged in a judgment, which the second endorser paid and took an assignment of, and oiv which he sold and bought in the first endorser’s land, the first endorser purchased of him the certificate of sale, after which the maker-paid. the judgment to the second endorser who assumed to satisfy it. Behl, that the first endorser had, on discovery of the facts, an election, to ratify the satisfaction and recover from the second endorser what he had received, or to ratify the execution sale and recover from the-maker on the ground that the sale of his property had paid the milker’s debt,—but that having elected with knowledge of the facts, and recovered a judgment against the second endorser, sufficient to have-indemnified Mm had it been collectible, it was too late on finding it uncollectible to pursue the other remedy. The reason given, is that, one remedy involved the necessity of totally disaffirming the fact of payment by himself, which was essential to the other remedy. Supreme Ct., 1870, Goss v. Mather, 2 Lans. 283; aff’d in 46 N. Y. 689; but no 'opinion reported.

53. Money received by breach of duty.] If a principal having furnished Ms agent with moneys to purchase goods for him, and finding-that the agent has purchased in his own name and sold the merchandise to other persons, sues to recover the moneys which ho thus advanced to-the agent and recovers judgment with full knowledge of the fraud, he cannot afterward recover the merchandise from one who purchased from the agent with notice. The reason assigned is that the recovery of the judgment affirmed the title of the vendee. Ct. of App., 1866, Bank of Beloit v. Beale, 34 N. Y 473; aff’g 7 Bosw. 611.

[Whether the bringing of the action is, before judgment, a waiver of the other remedy, was perhaps not determined. In "this case the second action was instituted before judgment in the other action, but the judgment was recovered before trial in the second action, and no objection to its proof on the ground that it did not exist at the commencement of the action, was made at the trial.]

54. —fraudulent transferee.] The trustee of a bankrupt’s estate-applied to the court of bankruptcy to declare a bill of sale, made by the bankrupt, fraudulent and void as against himself as trustee, and to order the assignee under the bill of sale, who had previously to the bankruptcy sold the goods comprised therein, to pay over the proceeds of the sale-to himself. The court of bankruptcy having so ordered, and the assignee having paid over the proceeds—Held, that the trustee could not afterwardsbringtrover'against assignee to recover difference between the value of the goods and the amount realized by the sale, inasmuch as by the proceedings in bankruptcy, to recover proceeds of sale, he had affirmed such sale and waived the tort. The court held that whether the plaintiff’s proceedings in bankruptcy amounted in point of law to a conclusive election or not, as a matter of fact there was an affirmance of the sale, etc. C. P. 1873, Smith v. Baker, L. R. S C. P. 350.

55. Where suit was brought to set aside a sale by plaintiff's agents as fraudulent and to recover the property sold, the defendant, a corporation, disposed of the property pending the litigation, and when judgment was rendered, ordering it to. deliver the property, defendant was unable to comply with the judgment.—Held, that such a judgment was no bar to a subsequent action by plaintiff’s assignees to recover from defendant’s agents the proceeds of the property sold pending the original suit, and received by such agents. [Citing Osterhout v. Roberts, 8 Cowen, 43; Ball v. Liney, 48 N. Y. 6.] Ct. of App., 1885, Avila v. Lockwood, 98 N. Y. 32.

But in another action it was held that this subsequent judgment ratified the sale, and precluded a third action to recover of the purchasers as for a conversion. Avila c. Manhattan Chemical Co., 32 Hun, 1.

56. Joint wrongdoers.] A former action brought upon contract against two of the persons concerned in the wrongful taking of property, and carried to final judgment, constitutes such an election of remedies as to preclude plaintiffs from maintaining an action for conversion against the other persons who were concerned in the same taking of the same property. [Boots v. Ferguson, 46 Hun, 129; Bank v. Beale, 34 N. Y. 473; Lovejoy v. Murray, 3 Wall. 1.] Supm. Ct., 1888, Terry v. Munger, 49 Hun, 560.

57. Where trespass or trover will lie, if the wrongdoer has converted the property into money, the plaintiff may waive the tort, and bring his action of assumpsit. [6 Term Rep., 695; 2 Ld. Raym. 1216; 1 Man. & S. 583, 587.] And although ho has had judgment (without satisfaction) against one trespasser, he may maintain assumpsit for money had and received against the other, if the other was not a party to the former action. The court say it is not a double vexation for the same cause because the same evidence will not support both actions, and that the remedy against double satisfaction is to apply to the court. N. Y. Superior Ct., 1829, Sturtevant v. Waterbury, 2 Hall, 449.

58. Disaffirmance.] In a creditor’s suit to avoid a general assignment by the judgment debtors, on the ground of their fraudulently withholding a considerable portion of their estate from its operation, it appeared that shortly after the assignment the plaintiffs, with a knowledge of the facts, entered into negotiations looking to a composition, and to that end signed a composition agreement, but before it had become perfected, .withdrew their consent and attached the assigned property in the hands of the assignee, upon affidavits setting up the fraud. They subsequently moved in the assignment proceedings to remove the assignee, and proved their debt, with an express qualification that they did not recognize the validity of the assignment.—Held, that the suing out of the attachment, and the seizure thereunder, were an election in hostility to the assignment, which necessarily defeated any subsequent steps in the contrary direction, and deprived them of the effect they might otherwise have as a ratification of the assignment. Supm. Ct., Sp. T., 1885, Henlein v. Henlein, 16 Abb. N. C. 73.

59. It seems that if a person who has the right to affirm or disaffirm a contract, chooses to do the latter and bring an action or takes other steps based on such disaffirmance, he cannot afterwards be heard in a court of justice to assert the contrary. This rule has nothing to do with the election of remedies, but is based upon a doctrine that when a person has made an election as to rights, he should not afterwards be permitted to change his position and set up an inconsistent right. Supm. Ct., Sp. T., 1885, Garrison v. Marie, 1 How. Pr. N. S. 348, 356.

60. — act of trustee.] Pending a previous suit to compel the trustee to convey the land, a third person with notice of the trust bought the land. After decree against the trustee, the cestui qui trust sued this purchaser, asking a decree for the land or the proceeds. Chan. Kent said : “ The claim raised by the bill against Ballou, for the land, and against Hunt, for the proceeds of the sale, are inconsistent with each other; for the one annuls, and the other affirms the sale. The claim to the land is clear of all difficulty, and comes within all the cases; and the only use I shall make of the demand in the alternative, for the lands or the proceeds, will be to relieve Eallou, as far as it is possible, from the loss of his improvements, by giving him the alternative, to convey the land, or keep the land, and pay the amount of the consideration he gave, together with the interest thereon.” Murray v. Ballou, 1 Johns. Ch. 566, 581.

61. If a trustee of land, pending a suit against him for a breach of trust, fraudulently sells the estate, and assigns securities taken for the purchase-money, the ,cestui qui trustent may either disregard the sale and claim the land, or affirm the sale and claim the securities. But they must make their election between the' two, [The court say, “ The two claims, as I have observed in the analogous case of Murray r. Ballou and Hunt, 1 Johns., Ch. Rep. 566, 581, are inconsistent with .each other. The one sets aside, and the other affirms the sale.”] Chan., 1817, Murray v. Lylburn, 2 Johns. Ch. 441.

62. Mere issue of attachment.] A creditor of an insolvent who has made a general assignment for creditors, does not, by bringing an action against the insolvent for his debt, and obtaining an attachment -on the ground of the invalidity of the assignment, where such attachment is never levied, but it and the execution subsequently issued, are both returned nulla bona, preclude himself from thereafter proceeding under the assignment against the assignee and the sureties on his official bond. The mere attempt to pursue a remedy to which one is entitled without obtaining any legal satisfaction therefrom, will not •deprive him of that to which he had originally a right to resort. [Distinguishing Brown v. Littlefield, 11 Wend. 467; Iselin v. Henlein 16 Abb. N. C. 79; Rodermund v. Clark, 46 N. Y. 354.] Supm. Ct., 1887, Sternfeld v. Simonson, 44 Hun, 429.

68. It. seems that the fact that the creditor had previously proceeded in the assignment matter and secured an examination of the assignor and assignee, was an election to proceed under the assignment which might have been set up to defeat the attachment proceedings. lb.

64. Disapproval and demand not a conclusive election.] A delivered notes belonging to the plaintiff, while the plaintiff was sick, to the defendant, as security for plaintiff’s debt. The plaintiff having recovered, disapproved the action of A, and demanded back the notes. He then sued defendant in contract for the amount of the notes. Seld—that he hereby (by this form of action) affirmed the contract of A, as agent, although he had before disapproved of it. His disapproval '“could not have' the effect to prevent a subsequent ratification of the acts.” Woodward v. Harlow, 28 Vt. 338.

65. Acts in ignorance are not conclusive.1 Knowledge of fraud •essential to compel vendor to elect his remedy. Ct. of App., 1886, Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y. 25 ; affg 33 Hun, 169.

66. A judgment recovered by the seller of a chattel for the price, is not such an affirmance of the sale as to bar him from recovering the •chattel for fraud subsequently discovered. There is no election of remedies until the vendor has knowledge of the fraud. N. Y. Com. Pl., 1881, Sacia v. Decker, 1 Civ. Pro. R. 47.

67. A seller of goods brought an action for their price, in which he .applied for and obtained an attachment on the ground that defendant had removed and disposed of his property with intent to defraud his -creditors. The attachment suit was subsequently discontinued and the same plaintiff brought replevin for his goods on the ground of fraud on the part of the defendants, in their original purchase. Seld, that as it did not appear that plaintiff had knowledge of the fraud in the purchase at the time of bringing the first action, and as no advantage had accrued to him by reason of the attachment, he would not be deemed to have been elected to have affirmed the sale, and that therefore the latter action xvas maintainable. [Citing Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y. 25.] Ct. of App., 1887, Hays v. Midas, 104 N. Y. 602 : affg., 39 Hun, 460.

68. The commencement and prosecution of an action to recover the-price of goods sold, and the issuing and seizure of the debtor’s property under an attachment, which results in no benefit to the creditors, the proceeding and action being subsequently discontinued, will not preclude a subsequent suit to recover the plaintiff’s property sold on the ground of fraud, where it does not appear that the first action was-brought with a knowledge on the part of the plaintiffs of the existence-of the fraud. [Citing Equitable Foundry Co. v. Hersee, 33 Hun, 169; aff’d., 103 N. Y. 25 ; Acker v. Hotchkiss 97 Id. 395 ; Hays v. Midas, 104 Id. 602.] Supm. Ct., 1888, Bach v. Tuch, 47 Hun, 536.

69. A seller who is induced to part with personal property by fraud does not by commencing an action and procuring the issue of an attachment against the fraudulent buyer’s property, estop himself from, replevying the property on discovery that the defendant had not parted with its possession to any purchaser in good faith and for value, first, discontinuing the attachment action without entry of judgment. [Citing Equitable Foundry Co. v. Hersee, 33 Hun, 169; Wright v. Ritterman, 1 Abb. Pr. (N. S.) 428.] Supm. Ct., 1886, Conrow v. Little, 41 Hun, 395.

70. Part of goods.'] The election by a creditor to affirm a contract' for the sale of goods as to part of the claim only, is not sufficient to deprive him of the right to sue as to the remainder of the claim for' fraud in inducing the contract by false representations as to his means and property. N. Y. Superior Ct., Sp. T., 1867, Zinn v. Ritterman, 2 Alb. Pr. N. S. 261.

71. A seller having disaffirmed a fraudulent sale, may bring replevin for such goods as are within his reach; .and if there are others-he may also maintain an action for fraud. And the commencement of the latter action is not a defense to the former, as it proceeds not upon the ground of affirming-the contract, but is in disaffirmance of it. [66 N. Y. 558; 50 Id. 487; 6 Weekly Dig. 508.] Supm. Ct., 1878, Hersey v. Benedict, 15 Hun, 282.

72. A vendor of personal property, who, after an assignment for the-benefit of creditors by the vendee, has elected to rescind the sale, and brought replevin for the goods on the ground of fraud, which is subsequently proved in the replevin suit, in which j udgment for a part of the goods sold is entered, for the vendee, cannot afterward, because of his failure to secure adequate relief in the replevin suit, maintain a. claim against the assignee of the vendee for all the goods sold, credit ing on the claim the amount received in the replevin suit. Farwell v. Myers, 59 Mich. 179 ; Rep. 26 Northwest, s. c. 328.

V. Equitable estoppel.

[Where a party has been misled by an apparent election under circumstances raising an equitable estoppel, the reason of the rule seems sufficiently clear without referring to cases.]

VI. Estoppel by adjudication.

[Where the fact essential to an election has been conclusively established by judgment the reason of the rule is sufficiently clear without referring to cases. But this is not always held to apply if the parties are different. See the following cases.]

73. Brokers found a purchaser for a house belonging to a wife, but at husband’s request, the brokers supposing title to be in the husband, and charging him on their books. They sued husband fur their commission ; he defaulted in the action; they learned then that the house -had belonged to the wife; they proceeded to recover judgment against the husband, which judgment remained unsatisfied. They now sued .the wife in contract, but—Held, that their election to hold the husband {as agent in the transaction) concluded them. Kingsley v. Davis, 104 Mass. 178 (1870).

74. Plaintiff sued the master of a vessel, who had signed the bill of Jading in his own name, for non-delivery of goods. He recovered judgment, which however remained unsatisfied. Plaintiff now having brought suit against owners, it was—Held, (on demurrer,) that in ordinary cases of principal and agent, when the agent had been sued to judgment, there can be no second action against the principal; and that the case of owner and master of a vessel is no exception to the general rule. Exch. 1865, Priestly v. Fernie, 3 H. & C. 977.

75. A contract was made by W. & L., really as agents of B. (the original plaintiff) but in their own names. Held, that both principal .and agent were liable; and that although judgment had been recovered against the agent, the principal was still liable, the judgment being unsatisfied ; and that neither agent nor principal can put a ■creditor to his election; each is discharged only by-satisfaction. Beymer v. Bonsall, 79 Pa. St. 298 (1875), (and see case 39 above).

76. An action against the auctioneer, by the purchaser, at a sale ■of real estate, to recover the amount of his deposit with interest from the time of demand and refusal, upon the ground that a perfect title ■could not be conveyed, as agreed, is barred by a recovery against the vendor, and satisfaction, although in the action against the vendor interest was not recovered because of failure to prove the demand and refusal, which proof was made in the action against the auctioneer, Ct. of App., 1877, Cockcroft v. Muller, 71 N. Y. 367.

77. The issuing of an attachment and levy under it will not conclude the plaintiff from his election to obtain the same goods levied upon, by replevin, where they have been obtained from him by fraud, unless the action in which the attachment has been issued, has proceeded to judgment. Supm. Ct., 1884, Johnson v. Frew, 33 Hun, 193. [Here, however, the attachment issued was void.]

"VII. Inconsistent positions before the court.

78. Pleading.] A position taken by the party in another suit with • the same adversary, and on the same subject matter, which remainsunretracted, may be pleaded as a bar to his pleading the contrary position in the present suit. Hughes v. Dundee Mortg. and Trust Invest. Co., 28 Fed. Rep. 40 ; holding, that one who had taken a former judgment up by writ of error, could not, pending the writ,, plead the judgment as a former adjudication ; and a reply stating the-writ of error was sufficient on demurrer. [The court approves the rule in Bigelow on Estop., 601; that one who has taken a particular position in the course of a litigation must, while that position remains. unretracted, act consistently with it.]

79. Invalidity and breach.] A party cannot both repudiate a contract and enforce it in the same action. Hence, an employer in a. building contract who avoids liability by establishing the contractor’s-failure to perform completely, thus leaving him in possession of the-results of part performance without compensation, cannot also recover damages for defective performance. Ct. of App., 1864, Walker v. Millard, 29 N. Y. 375.

80. Change of position.] Plaintiff sued on a special contract for services, etc., and defendant obtained a nonsuit on the ground that plaintiff failed to prove that defendant made the contract. Plaintiff then sued for services generally. Held, that defendant was not estopped, either by the record nor equitably, from setting up the same-contract which he had denied in a former action and alleging a breach by plaintiff, in bar of recovery thereon. A nonsuit for failure to-prove does not conclude the merits ; and a denial of a special contract, cannot be regarded as inducing plaintiff to sue independent of it within the rule as to equitable estoppel. [Explaining 18 How. (U. S.), 307 which see 81, and 85, below.] Supm. Ct., 1858, Reynolds v. Garner, 66 Barb. 310.

Compare' Morss v. Osborn, 64 Barb. 543 ; Marcellus v. Countryman, 65 Id. 201 ; and Aronson v. Cleveland, etc., R. R. Co., 70 Penn. St 68; and case in the text at p. 129.

81. Form of action.] Sueing in assumpsit, and failing because the instrument was found to be sealed, does not preclude sueing in covenant on the instrument. Phila. and Wilm. etc. R. R. Co. v. Howard, 13 How. (U. S.) 307, 340; s. c. 14 Law. Ed. 157. (See below.)

82. Joint and several.] It seems, that a joint judgment is no bar at law to a separate suit against one of the obligors (or against his personal representatives) on a joint and several bond. The joint remedy is barred, but not the several remedy.

(Per Stout, J.) It is not the case that the obligee has an election only of the one remedy, or of the other, and that by electing a joint suit he waives his right to maintain a several suit. The remedies are concurrent. A joint and several suit might then have been brought at the same time, thought there could have been but one satisfaction. U. S. v. Cushman, 2 Sumn. 426 (bill in equity.)

83. A promissory note, signed by two persons, in form, “I promise, ”—Held, joint and several, so that the holder had his election to consider it as either, and prosecute his remedy accordingly ; and so that having brought an action against both makers, jointly and recovered a judgment with a right of execution against the joint property of the defendants, he cannot afterward sever his remedy and have a separate action against either. N. Y. Superior Ct., 1866, Lane v. Salter, 4. Robt. 239. [The principle is not discussed in this case.]

84. The action in the court below was by the commonwealth against four persons on the official bond of one them. S. confessed judgment. Plaintiff entered rule to refer cause to arbitrators, who in their report found against B., one of the defendants, a certain sum, whereupon judgment was entered,—to reverse which this writ of error was sued out. Held, that confession of judgment by one defendant accepted by plaintiff below operated as a release Of the other defendants. The bond was joint and several. Defendants (below) could no longer be held jointly; and no action could now be brought severally, since plaintiff (below) elected to sue jointly, and is bound by this election. Belzhoover v. Commonwealth, 1 Watts. (Pa.) 126 (1832). (See also U. S. v. Price, 9 How. 83, 89.)

VIII. Forensic estoppel.

86. A representation which has defeated one action on a point of form binds the party who thus used it, and will avail to support another action on a like point; and the party cannot defeat the second action by showing that the representation in the previous action was made under mistake, or by fraud. Hence if defendant defeats an action by adducing testimony that a deed was duly sealed he cannot defeat a subsequent action, brought on the theory that the deed was sealed, by showing the contrary. Phila. Wilmington, etc. R. R. Co. v Howard, 13 How. U. S. 305, 334. Opinion by Curtis, J., a leading case. s. p., Johnson v. Roanoke Land and Impr. Co., 1886, 82 Va., 284; s. c., 10 Va. L. J. 538.

86. For other illustrations of this subject, see note in 22 Abb. N. C. 268, 274; and Morss v. Osborn, 64 Barb. 543; Marcellus v. Countryman, 65 Id. 201 ; Reynolds v. Garner, 66 Id. 310 ; Bradner v. Howard, 75 N. Y. 417 ; Erickson v. Quinn, 3 Hun, 549,

87. But merely making oath to an allegation of fact, in taking an legal proceeding, does not estop the party, if he gets no benefit or advantage by so' doing, and the other party is not misled. Hence an affidavit to sustain a mechanic’s lien stating that the contract relied on was with the contractor, does not alone estop one from afterward claiming that it was with the owner. Smith v. Ferris, 1 Daly, 18.

IX. Other cases.

88. Deceit, negligence or breach of covenant.] A tenant sued his landlord, alleging the falsity of the lattsr’s representations as to the condition of the premises, and that by reason of his neglect to repair, the plaintiff sustained personal injuries to his damage in a sum named, for which he prayed judgment, and upon the plaintiff’s election to treat the action as one for negligence, the complaint was dismissed. Held, that a subsequent action alleging in the complaint the same representation, and claiming damages for breach of the agreement to repair- and, for a second cause of action, averring a covenant for quiet enjoyment and its breach, was not identical with the former, so as to sustain a stay of proceedings in this action, until payment of the costs in the former. N. Y. Com. Pl., 1880, Arnold v. Clark, 9 Daly, 259.

89. The plaintiff, by exercising his election in the first action, did not waive his right to bring his second action. [Citing Louw v. Davis, 13 Johns. 227 ; Foster v. Milliner, 50 Barb.385 ; Thompson v. Wood, 1 Hilt. 93.] Id.

90. Breach of agreement to exchange, and of warranty.] Judgment against A. for the value of property which he agreed to give B in exchange for a thing he received from B, but which he refused to deliver, is not a bar to a subsequent action brought by A for damages for breach of warranty of the thing received by him, if the question of warranty was not raised by the pleadings and the controversy in the, former suit. Supm. Ct., 1866, Morgan v. Powers, 66 Barb. 35.

91. Fraud or.místale,e.~\ Judgment in action for fraud not bar to action based on mistake of fact. Ct. of App , 1886, Belden v. State of N. Y., 103 N. Y. 1; aff’g 31 Hun, 409.

92. Partnership, or employment.] A judgment dismissing a complaint in an action for a partnership accounting, based upon a finding that there was no partnership,—Held, not a bar to a subsequent action between the same parties to recover for plaintiff’s services under a contract to pay him therefor one-half of the profits, although both actions referred to the same transaction and business. [Citing Harding v. Hale, 2 Gray (Mass.), 399; Norton v. Huxley, 13 Gray (Mass.), 285; Stowell v. Chamberlain, 60 N. Y. 272.] Ct. of App., 1886, Marsh v. Masterton, 101 N. Y., 401; aff’g 50 Super. Ct. (J. & S.) 187.

93. The fact that in the first action the court might have allowed ■an amendment of the complaint so as to enable the plaintiff to recover a share of the profits as a compensation for his services, does not make the latter a question which could have been litigated, tried and •determined in the former actions so as to make the first judgment a bar. lb.

94. Account stated or original consideration.] Where the plaintiff sued defendant upon an account stated, and the complaint was dismissed for failure of proof, the judgment is no bar to a second action between the same parties for goods sold and delivered, although such ■sale and delivery was the subject in reference to which it was claimed there was an account stated. “In order that the decision in one case ■can control another, the issues in both must be identical, not only in name, but in fact and substance.” 1885, Derleth v. Degraaf, 51 Super. Ct. (J. & S.) 369.

95. Performance and damages for preventing performance.) Defendant, a member and chairman of a board of county commissioners In Kansas, was sued in Missouri by a holder of bonds issued by a ■county in Kansas, to recover damages for preventing the levy by such board of a tax to pay the interest on the bonds. Held, as the action was one maintainable at common law, and the duties of defendant were purely ministerial under the laws of Kansas, that the action could be maintained in Missouri, notwithstanding the fact that plaintiff had already obtained a judgment against the county in Kansas for the Interest coupons due, and also a peremptory mandamus from the circuit court of the United States for the district of Kansas, commanding the board of which defendant was a member to levy a tax to pay the judgment. St. Joseph Fire, etc. Ins. Co. v. Leland, 90 Mo. 177; 2 Southwest. Rep. 431; 7 West. Rep. 314,

96. Contract, and deceit in inducing it.) ' Where several persons are liable in respect of the same obligation, but upon different grounds,— as where credit to one was induced by the fraud of another or the debt of one is guaranteed by another. The creditor, even when he is .entitled to but one satisfaction, is not obliged to elect. And this principle applies where the debt of a firm is guaranteed by a member of the firm or a member is liable for deceit in inducing the credit which, was given to the firm. Morgan v. Skidmore, 3 Abb. N. C. 92, 103. (Ct. of App. 1870.)

97. Abating or sueing.] In the case of a private nuisance, the aggrieved party may, at his election, remove the nuisance, or bring action for the private damages sustained by him. He cannot have both remedies. Supreme Ct., 1866, Griffith v. McCullum, 46 Barb. 561. [Dictum: No reason is stated.]

98. Inconsistent relief] L made a mortgage to plaintiff. He after-wards made a second mortgage to defendant. On account of an error in the first mortgage plaintiff had his mortgage cancelled of record, and a new one substituted. Then, Timing in the meantime learned of the-existence of defendant’s mortgage he proceeded to enter and sell the-premises under his own mortgage. He now [in the present action prayed that defendant might be enjoined from selling the premises under his mortgage, and that his own first mortgage be restored This relief was refused, on the ground that he was concluded by his election to rely upon his second mortgage. Childs v. Stoddard, 130 Mass. 110 (1881).

99. —alternative modes of affirmance. ] Plaintiff had entered into contract with defendant for the purchase of land. Afterwards, however,, defendant refused to carry it out, and conveyed the land to R. Plaintiff began an action against defendant for damages for breach of contract, and attached the premises in question, but did not carry through his-action. During the attachment, however, E had to give bonds with surety, etc., to make a good title in mortgage. The plaintiff now applying in equity for specific performance,—Sold, that there ivas no conclusive waiver of remedy by reason of his former proceedings. The-court say: “ The remedy in equity, by compelling specific performance and that at law in damages for the breach, are both in affirmance of the contract. They are alternative remedies but not inconsistent; and. remedy in both forms might be sought in one and the same action.”' Connihan v. Thompson, 111 Mass. 270 (1873).

100. Simultaneous remedy at law and in equity.] In Livingston ».. Kane, '3 Johns. Oh.’¡¡¡A, a creditor by judgment, while pursuing his remedy by execution at law on the judgment to sell the debtors real property filed a bill in equity and obtained an injunction to forbid, other creditors by confessed judgments from selling on their executions because as he alleged the confessed judgments were fraudulent as to creditors. On petition of such latter creditors, held that the complainant must elect to let them have an equal chance with him at law, or suspend his execution until the bill in equity was decided.

Chancellor Kent said:

“ The principle on which the suit at law and. the suit in equity, at the same time, for the same cause, is prohibited, is the 1 double vexation,’ as it is expressed in Lord Bacon’s rules on this subject; and by one of Lord Clarendon’s rules, a suit pending at law for the same matter, was a good plea in bar to the suit in chancery. So, in Mocher v. Reed, (1 Ball and Beatty, 318.) Lord Manners, in explaining the reason of the rule on this subject, and which now requires an election instead of a plea, observes, that ‘ it would be utterly inconsistent with the ends of justice to permit a party to proceed in this court, and at law, at the same time, for the same demand; for the jury may find a-verdict one way, and the master make a report a different way, which would occasion such a clashing of jurisdiction as never could be endured.’ It is quite apparent, from this explanation and history of the rule, that the present case is not within it, to the extent of requiring the bill to be dismissed. There is no ‘ double vexation ’ by the continuance of the suit here.”

101. Actions in two jurisdictions.] It is not a defence nor matter of abatement that plaintiff is prosecuting another action for the same cause, in the courts of a sister state or a foreign country or in a court of the United States. Walsh v. Durkin, 12 Johns. 99 ; Oneida Co. Bk. v. Bonney, 101 N. Y. 173.

102. But the court may, in its discretion, on motion, compel plaintiff to elect which he will proceed with. Bell v. Donohue, 47 Super. Ct. (J. & S.) 488; White v. Caxton Book-Binding Co., 10 Civ. Pro. R. (Browne) 146.

103. Different facts.} An action for the value of labor and materials used in building a bulkhead on the land of the defendant, is not barred by the fact that the plaintiff had previously brought and discontinued an action for an undivided interest in the bulkhead, on its appearing that an oral agreement for payment in that manner had been subsequently waived by the parties, inasmuch as the second action is upon a different state of facts, and is not therefore within the rule that where one has two inconsistent remedies, and with full knowledge-of his right, resorts to one, he is cut oft from the other. [10 N. Y. 232.] N. Y. Com. Pl., 1878, White v. Whiting, 8 Daly, 23.

[First action erroneously brought upon an oral agreement which the-same parties subsequently agreed to waive.]

104. Guaranty and fraud.] A recovery of judgment for an installment of interest against the assignor of a bond and mortgage, the payment of which he had guaranteed, does not bar a subsequent action against such assignor for fraud, on the ground that the securities were-worthless. A party may prosecute as many remedies as he legally lias, provided they are consistent and concurrent. Ct. of App., 1884 Bowen v. Mandeville, 95 N. Y. 237; affg 29 Hun, 42.

105. It seems, that if plaintiif had recovered judgment for the -•entire amount guaranteed, the court would restrain an action for the .fraud, as plaintiff can have but one satisfaction for the damages suffered. [Citing Cormier v. Hawkins, 69 N. Y. 188, 190.] Ib.

106. Different form of remedy.] When one has two remedies con.current and distinct, his failure to obtain one does not bar his attempt to obtain the other. Failure to maintain an action against an executor .for part of a legacy withheld, the failure being on the ground of lack •of proof of a demand, does not bar a proceeding for the same relief in •the surrogate’s court, because they are not inconsistent remedies. Supm. Ct., 1881, Hurlbut v. Durant, 12 N. Y. Weekly Dig. 477.  