Friedlander v. Feinberg

• Decision Date: 14 December 1921
• Docket Number: 12502.
• Citation: 110 S.E. 26,27 Ga.App. 808
• Parties: FRIEDLANDER v. FEINBERG.
• Court: Georgia Court of Appeals

110 S.E. 26

27 Ga.App. 808

FRIEDLANDER v. FEINBERG.

No. 12502.

Court of Appeals of Georgia, Second Division

December 14, 1921

Syllabus by the Court.

Plaintiff and defendant in the court below had contracted to conduct a mercantile business pending their application for a charter of incorporation. Defendant was to furnish the goods upon consignment until the purchase price was paid, and plaintiff was made a limited partner and manager in charge of the business, with the right to receive a stipulated weekly allowance and all profits above a certain percentage. The petition alleges that defendant, without the consent of plaintiff, without legal process, and without legal cause entered the storehouse, forcibly ejected plaintiff therefrom and, after taking charge of the stock, locked plaintiff out of the building. Plaintiff thereupon presented to a judge of a superior court an equitable petition for a receivership and asked for an injunction and accounting against defendant "for all money taken in from the sale of goods from said business since he has had charge of same." The suit was not filed with the clerk of the court, or formally served but upon a rule nisi being granted and a temporary receiver appointed, a settlement was effected with defendant for a cash sum, which, as the present petition alleges "petitioner accepted for his profits in said stock of goods over and above what he owed to said [defendant] on said goods." Thereafter plaintiff filed the present action in tort, which is expressly limited to the recovery of general damages for injury to his reputation and standing and for wounded feelings caused by the tortious and forcible ejection. Defendant's general demurrer set up the earlier suit as an election, bar, or estoppel of the instant suit. Held:

1. Where in a legal proceeding a party assumes a certain position and succeeds in maintaining it, he may not thereafter take a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. Luther v. Clay, 100 Ga. 236(1), 241, 28 S.E. 46, 39 L.R.A. 95. Nor will a person be permitted, after electing one of two or more inconsistent remedies, which he might originally have pursued at his option, to change his base and adopt a course wholly inconsistent with the remedy which he first selected. Board of Education v. Day, 128 Ga. 156, 164, 57 S.E. 359; Kennedy v. Manry, 6 Ga.App. 816, 66 S.E. 29; Florence v. Newsome, 106 S.E. 619; Rowland Co. v. Kell Co., 27 Ga.App. 107, 107 S.E. 602. Where remedial principles are thus contradictory, "as soon as the choice is made and one of the alternative remedies proffered by the law adopted, his act at once operates as a bar as regards the other, and the bar is final and absolute." Bacon v. Moody, 117 Ga. 207, 210, 43 S.E. 482, 483; Harris v. Cleghorn, 121 Ga. 314(1), 48 S.E. 959. But a party is entitled to pursue any number of consistent and concurrent remedies. See cases cited supra.

In a case where the subsequent alternative remedy is in fact inconsistent with the former procedure, a submission to a judge of the former petition, and the obtaining of relief thereon, by which judicial action a compromise or settlement of the claims involved in the former suit is obtained from the opposite party, will constitute such an election estoppel, or bar as would thereafter preclude the plaintiff from prosecuting an alternative remedy, notwithstanding the first suit may not have been filed with the clerk of the court, or formally served upon the defendant. But there is no such bar in this case, for the remedies are not inconsistent, but merely cumulative, since only the profits and actual property damage were claimed and recovered by the former suit, whereas the subsequent suit proceeds solely ex delicto for general damages for the alleged injury to plaintiff's reputation and standing in the community and for wounded feelings. Henson v. Taylor, 108 Ga. 567(4)...