Fuller-Warren Co. v. Harter

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Fuller-Warren Co. v. Harter, 110 Wis. 80, 85 N.W. 698 (Wis. 1901)
• Decision Date: 09 April 1901
• Parties: FULLER-WARREN CO. v. HARTER.

110 Wis. 80

85 N.W. 698

FULLER-WARREN CO.

v.HARTER.

Supreme Court of Wisconsin.

April 9, 1901.

Syllabus by the Judge.

1. The rule that a choice of one of two inconsistent remedies or causes of action waives the other, applies only where there are two such remedies or causes of action.

2. If a person pursues a cause of action which he erroneously supposes he has and is defeated because of the error, he is not precluded thereby from suing over upon the proper cause of action.

3. The vendor of personal property sold to be and in fact attached to real estate by the owner thereof or with his consent, as a permanent improvement, may by contract with such owner preserve the chattel character of the accession.

4. In the circumstances stated, the character of the accession cannot be preserved by contract between the vendor and vendee of the personalty as against the owner of a mortgage of the realty existing when the accession is made, who is not a party to such contract.

5. A contract between a vendor and vendee of personal property to be incorporated into the real estate of the latter as a permanent improvement thereof, such realty being incumbered by mortgage and the mortgagee not being a party to the contract, reserving the title to or any lesser interest in the subject of the sale after such improvement, for any purpose, is invalid as to the mortgagee.

6. Personal property annexed to mortgaged real estate which, as between mortgagor and mortgagee, becomes part of the mortgage security, becomes such as between the latter and a third person regardless of any contract between the former and such person and whether the removal thereof from the building can be effected without material injury thereto or to the value of the mortgage security as it existed prior to the accession.

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by the Fuller-Warren Company against Gilbert Harter. Judgment for plaintiff. Defendant appeals. Reversed.

Action for a wrongful conversion of personal property. The trial was by the court. The findings were to the effect that in 1894 plaintiff sold and delivered to Ann T. Shurts a No. 290 Fuller & Warren hot-air furnace and the necessary connections for use in heating her dwelling house, and caused the same to be set up therein under a contract guarantying the capacity thereof to heat such house to a specific temperature under specified conditions, and providing that, in the event of a failure so to do and notice thereof to plaintiff, it should have the option to make the plant do the work guarantied or remove the same, plaintiff refunding any money that may have been paid thereon. Mrs. Shurts claimed that the property failed to fulfill the guaranty. She gave plaintiff notice thereof and that she would not accept or pay for the apparatus. Plaintiff then endeavored to remedy the alleged insufficiency, but failed, whereupon Mrs. Shurts refused to accept the apparatus and offered to return it. Plaintiff, claiming that the plant was as good as guarantied, sued to recover the purchase price thereof and to enforce such recovery under the lien laws of the state because it was incorporated with and a part of the real estate on which it was located. Judgment was rendered in favor of Mrs. Shurts because the sale contract had been rightfully rescinded on the ground that the plant wholly failed to come up to the guaranty. When the plant was put in place there was a real-estate mortgage on the house. Before the final determination of the action against Mrs. Shurts such proceedings were duly taken to enforce such mortgage that defendant herein became the owner of the property as purchaser at the foreclosure sale, and is still such owner. The plant never became a part of the building in which it was located so but that it could be removed without material injury thereto. Seasonably after the decision aforesaid, plaintiff asserted its right to the plant as personal property, and before this action commenced demanded of defendant, who was then in possession of the real estate, the right to sever such plant therefrom and remove it, which was refused. The value of the furnace and its connections is $180.

Upon such findings judgment was rendered in plaintiff's favor and defendant appealed.

Tullar & Lockney, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

MARSHALL, J. (after stating the facts).

The first point made by appellant, that is deemed sufficiently important to be worthy of consideration, is that plaintiff, having elected to sue upon the contract when a way was open to treat it as at an end and to take the property in controversy, was legally bound thereby, and that the trial court should have so held by dismissing this action. The rule is quite familiar that a person cannot have the benefit of two inconsistent remedies or causes of action; that when there are such, either of which will remedy the wrong against him, the choice of one forever waives the other. Many applications of that have been made by this court. Warren v. Landry, 74 Wis. 144, 42 N. W. 247;Crook v. Bank, 83 Wis. 31, 52 N. W. 1131;Bank of Lodi v. Washburn Electric Light & Power Co., 98 Wis. 547, 74 N. W. 363;Carroll v. Fethers, 102 Wis. 436, 78 N. W. 604. It was very recently quite thoroughly discussed in Barth v. Loeffelholtz (Wis.) 84 N. W. 846. Does that rule apply where a person, supposing he has two causes of action for the satisfaction of his claim, when he in fact has but one, sues upon the supposed cause which has no existence, and is defeated on that ground? Is he under such circumstances precluded from suing upon the only cause of action which he in fact had? The proposition of appellant's counsel is that, because plaintiff sued upon the contract, supposing it had a cause of action thereon, and was defeated because the contract had been rightfully rescinded by defendant's predecessor, leaving the subject thereof the property of respondent, it must nevertheless lose the same because another remedy is necessary to its recovery; that while it was defeated because the subject of the action was not the property of Mrs. Shurts, it is in any event powerless to claim the thing which, by the judgment of the court, it owns. That seems to be unreasonable. If the doctrine as to the effect of an election between two inconsistent causes of action goes that far, it is certainly liable to cause great injustice in some cases. That, of itself, without investigation, suggests that it does not go that far. We should hesitate to sustain counsel's theory if the question involved was new, but it is not.

The same seemingly unreasonable application of the rule, as regards the effect of an election between inconsistent remedies, as that contended for here, has been several times insisted upon in other courts, as appears from reported cases, and always unsuccessfully. In Morris v. Rexford, 18 N. Y. 552, the circumstances were that plaintiff sold a quantity of oats to the defendant, payment therefor to be made on delivery. The delivery was made but the purchase price was not paid. After some delay the plaintiff endeavored to rescind the sale contract and brought replevin. Subsequently he sued for the purchase price of the oats. On the trial it did not appear that recovery was had in the replevin action or what had become of the same. The court held that the mere commencement of the replevin action did not necessarily preclude plaintiff from prosecuting the action on the sale contract; that whether there was an election of remedies within the meaning of the rule on that subject depended upon whether the plaintiff had in fact two remedies; that if he had but one, the pursuit of one that he did not possess would not bar him from subsequently resorting to the one which he did possess. In Kinney v. Kiernan, 49 N. Y. 164, the court stated the rule in these words: “The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.” In McNutt v. Hilkins, 80 Hun, 235, 29 N. Y. Supp. 1047, the decision was based on that in the preceding case cited. The rule declared substantially fits the exact facts of this case. The syllabus states it briefly as follows: “An action brought for the conversion of personal property, wherein it was successfully maintained by the defendant that the title to the personal property alleged to have been converted was in him and in which judgment was rendered in his favor is not a bar to a subsequent action between the same parties brought to recover damages for breach of the contract of the sale of such property.” In reaching such conclusion the court used the following language as to the contention of the losing party: “The defendants, by their contention, succeeded in establishing that there had been an absolute sale, and that, therefore, the plaintiff had mistaken her remedy, and they cannot now set up the judgment which they then obtained to prevent the plaintiff recovering the purchase price of the property which they formerly urged and established was sold to them by her, and which it is conceded they have not paid for, and thus not only retain the property, but also the purchase price.” To the same effect are In re Van Norman, 41 Minn. 494, 43 N. W. 334;Gould v. Blodgett, 61 N. H. 115.

In applying the rule as regards the effect of a choice between two inconsistent remedies or causes of action, it must be kept in mind that there must be two such remedies or causes of action, in fact, before a choice can be made within the meaning of the rule. A misconception of remedies should not be mistaken for an election between inconsistent remedies. Here there was no remedy upon the contract. Mrs. Shurts recovered of appellant upon that ground. Such recovery effectively answers the suggestion that the resort to the supposed remedy stands in the way of insisting upon the only remedy plaintiff had....