Cohoon v. Fisher

• Decision Date: 14 January 1897
• Docket Number: 17,971
• Citation: Cohoon v. Fisher, 146 Ind. 583, 45 N. E. 787 (Ind. 1897)
• Parties: Cohoon v. Fisher
• Court: Indiana Supreme Court

45 N.E. 787

146 Ind. 583

Cohoon v. Fisher

No. 17,971

Supreme Court of Indiana

January 14, 1897

Original Opinion of September 25, 1896, Reported at: 146 Ind 583.

OPINION

McCabe, J.

In deference to the earnest appeal of appellee's counsel to reexamine the question decided in the original opinion, we have carefully investigated it again.

While counsel have cited an imposing array of cases, seemingly in conflict with the conclusion reached in the original opinion yet they have studiously avoided mentioning the previous decision of this court on which the original opinion herein is founded.

When this court has once decided a question of law that decision, when the question arises again, is not only binding on all the inferior courts in the State, but it is binding on this court also until that case is overruled. The case that rules this case is Nysewander v. Lowman, 124 Ind. 584, 24 N.E. 355.

In that case, like this, the action was brought to rescind a contract for fraud; afterwards the complaint was so amended as to make it a complaint to recover damages for the fraud. The answer set up the original complaint as a conclusive election of remedies in bar of the amended complaint. But it was held that such election to be a bar must have been prosecuted to judgment.

A long list of adjudications is cited by counsel, decided in other jurisdictions, apparently establishing a different rule. We are asked to follow those cases without a word of explanation as to how we are to escape the force of our own previous decision above referred to. Those cases are Stuart v. Hayden, 72 F. 402, 18 C. C. A. 618; Wachsmuth v. Sims, 32 S.W. 821; Nat. Bank of Illinois v. First Nat. Bank of Emporia, 57 Kan. 115, 45 P. 79; First Nat. Bank of Chadron v. McKinney, 47 Neb. 149, 66 N.W. 280.

But our case in 124 Ind. is supported on the point in question by an extensive citation of decisions, both in this country and England, and those decisions are directly in point. The facts in the cases cited by appellee's counsel as supporting the contrary rule, or at least so many of them as appear at all to be in point, are just the reverse of the facts in this case or those in Nysewander v. Lowman, supra, and cases therein cited. That is, in the cases cited by appellee the first suit was brought to recover damages for the fraud perpetrated in the procurement of the contract. After abandoning such suit another suit was brought seeking a rescission of the same contract on account of the same fraud. But in the case now before us, and the one decided in 124 Ind., the suit for rescission was brought first, which was abandoned in the amended complaint and instead a complaint for damages on account of the same fraud was substituted.

It is true, in such a case, the injured party has a choice of either of the two remedies mentioned, but it does not necessarily follow that a mere choice of one by bare commencement of proceedings under it, without prosecuting it to a conclusion, precludes a resort to the other. Nor does it follow that because such preclusion does not arise in all cases that it may not arise in some cases. The facts of the cases to which appellee's counsel have referred us, are either directly opposite to the facts in the case now before us, or are of such a character as to make the rule laid down in one of them applicable, the same as it is applicable to the case now before us. That rule is stated in Nat. Bank of Illinois v. First Nat. Bank of Emporia, supra, and is stated thus: "'A man may not take contradictory positions, and where he has the right to choose one of two methods of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.'"

Now how does the choice of the remedy of rescission involve the negation or repudiation of the remedy of a suit for damages for the fraud? No one will deny the right to abandon a suit for rescission. Its abandonment involves the affirmation of the contract. Then if the plaintiff may abandon it and thereby affirm the contract, that is all he does when he sues for the damages caused by the fraud in...