Intertype Corporation v. Pulver

• Decision Date: 05 November 1932
• Docket Number: No. 1868.,1868.
• Citation: Intertype Corporation v. Pulver, 2 F.Supp. 4 (S.D. Fla. 1932)
• Court: U.S. District Court — Southern District of Florida
• Parties: INTERTYPE CORPORATION v. PULVER.

2 F. Supp. 4

INTERTYPE CORPORATION v. PULVER.

No. 1868.

District Court, S. D. Florida, Tampa Division.

November 5, 1932.

Hilton S. Hampton, of Tampa, Fla., and Warren B. Parks, of Orlando, Fla., for plaintiff.

Harry R. Hewitt and Jefferson D. Stephens, both of St. Petersburg, Fla., for defendant.

STRUM, District Judge.

On August 19, 1925, Intertype Corporation, plaintiff herein, agreed to sell to Frank F. Pulver, defendant herein, certain typecasting machines, appurtenances, and printing equipment, the purchase price being $31,825. What purported to be a conditional sale agreement was executed by the parties, which provided for payment as follows: $2,000 cash; delivery by Pulver to the Intertype Corporation of four linotype machines then being used by Pulver, at an agreed price of $15,375; and the remainder evidenced by a series of fifty promissory notes, each in the principal sum of $289, maturing at monthly intervals beginning November 10, 1925.

The sale contract contained, amongst others, the following provisions:

"Said notes shall be secured by a first mortgage or lien upon said property in the usual form used by the said (Intertype) corporation, which mortgage or lien said purchaser hereby agrees properly and legally to execute, acknowledge, and deliver to the (Intertype) corporation immediately on delivery of the property. * * *

"It is agreed that the legal title to the property shall remain in the (Intertype) corporation until the purchase price has been fully paid and until the first mortgage above referred to * * * has been duly executed by the purchaser and delivered to the corporation and in case of any default in any of the terms of this contract, the corporation shall have the right to take immediate possession of said property and remove the same. * * *"

The property was delivered to the purchaser. The purchase-money notes and mortgage referred to in the contract of sale were executed, delivered, and accepted by Intertype Corporation, the mortgage covering the identical property embraced in the contract of sale. The notes were dated August 31, 1925; the mortgage, September 29, 1925.

Eleven of the mortgage notes, aggregating $3,179, were paid. On April 12, 1927, some of the notes being in default, Intertype Corporation instituted a suit in equity in the state circuit court to foreclose the mortgage. Pulver answered, denying the existence of the mortgage, and, upon final hearing on March 22, 1928, the equities were found with defendant Pulver, and relief by foreclosure denied.

Thereafter on June 16, 1928, this action of replevin was commenced to recover possession of the identical goods described in the sale contract and in the mortgage; Intertype Corporation relying here upon its supposed contract of conditional sale, which purported to reserve title in said Intertype Corporation. In defense of the replevin action, defendant, Pulver, pleaded the general issue, election to pursue an inconsistent remedy, and estoppel; the latter pleas being based upon the prior foreclosure suit in the state court. The replevin action was referred to a referee, who found for Pulver on the pleas of election and estoppel, and that Pulver was entitled to the property replevined, or, alternately, as provided by the Florida Statutes (section 5346, Comp. Gen. Laws Fla. 1927), its value in the sum of $25,000.

On September 5, 1928, Intertype Corporation also appealed to the Supreme Court of Florida from the adverse decree of the state circuit court. On March 17, 1931, the Supreme Court of Florida (101 Fla. 1177, 132 So. 830) reversed the judgment of the state circuit court, holding that the mortgage sought to be foreclosed was valid and enforceable, directing a decree of foreclosure.

Upon rehearing, the Supreme Court of Florida on July 7, 1931 (101 Fla. 1180, 135 So. 793) vacated its former judgment and dismissed the appeal, upon the showing made by the appellee, Pulver, that pending the appeal the appellant, Intertype Corporation, had secured possession of the res by means of the writ of replevin in this court, and had removed the same beyond the state of Florida, so that there remained nothing upon which the processes of the Florida courts could operate.

The replevin action now comes up upon motion of plaintiff for leave to file additional replications setting up the last-mentioned action of the Supreme Court of Florida and thereupon for a re-reference to the referee, and upon defendant's motion to make the referee's findings the judgment of the court. See Intertype Corporation v. Pulver (C. C. A.) 56 F.(2d) 992.

Plaintiff now advances two contentions:

First, that Pulver's denial of the existence of the mortgage in the foreclosure suit, followed by the decree of the state circuit court sustaining his contention, which decree is now of force following the Supreme Court's dismissal of the appeal, subjects Pulver to a counter estoppel which precludes his asserting an estoppel against the plaintiff based upon plaintiff's original resort to the remedy of foreclosure.

In making this contention, plaintiff relies upon the principle that, where one party depends upon an estoppel, and the other party asserts and establishes a counter estoppel, the matter is thus set at large, one estoppel neutralizing the other, leaving the matter as if neither estoppel had been offered. Florida Land Inv. Co. v. Williams, 98 Fla. 1258, 116 So. 642; Branson v. Wirth, 17 Wall. (U. S.) 32, 21 L. Ed. 566.

In determining, however, whether or not the plaintiff has elected an inconsistent remedy, the outcome of the foreclosure suit is not the decisive factor. In states where, as in Florida, the matter is unaffected by statute, the prevailing view is that mere institution of an action which recognizes the existence of title in the buyer operates as a waiver of title in the seller, and the fact that such action is voluntarily abandoned, or not successfully prosecuted, is of no importance. In Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 776, 23 L. R. A. (N. S.) 144, the rule is thus stated: "It is not, however, the judgment which may be obtained, but the commencement of the suit to enforce a coexisting inconsistent remedy in a court having jurisdiction, which constitutes the decisive act, and makes the election binding." See 55 C. J. 1219, 1222.

It is settled law in Florida that, where a party, with knowledge of the facts, elects to adopt one of several inconsistent remedies, either of which are open to him, he cannot afterwards go back and elect again and pursue the other remedy, or either of them, even though he fails in the remedy originally elected and used. McKinnon v. Johnson, 59 Fla. 332, 52 So. 288; Weeke v. Reeve, 65 Fla. 374, 61 So. 749; Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 So. 435; American Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054; 55 C. J. 1219, 1225.

Assertion of a lien upon property is inconsistent with the assertion of title thereto. Van Winkle v. Crowell, 146 U. S. 42, 13 S. Ct. 18, 36 L. Ed. 880; Robb v. Vos, 155 U. S. 13, 15 S. Ct. 4, 39 L. Ed. 52. Assuming then that plaintiff originally had title and a remedy by replevin, he is bound by his election, with full knowledge of the facts, in commencing a foreclosure in which he asserted a mortgage lien, notwithstanding the adverse decision of the state circuit court. Moreover, the foreclosure suit was in effect an action to recover the purchase price, which in Florida operates as a waiver of title by the seller. See the Florida cases last cited.

Plaintiff next contends, however, that instituting the mortgage foreclosure did not constitute an election, because the remedy by foreclosure was not in fact an available remedy, the state circuit court having decided that no mortgage existed, that judgment being of force since the Supreme Court dismissed the appeal therefrom. To support this contention, plaintiff invokes the doctrine that a mistaken attempt to employ a nonavailable remedy does not constitute an election so as to bar subsequent recourse to a proper though inconsistent remedy. Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 L. Ed. 828; S. A. L. Ry. v. Hartline, 84 Fla. 133, 92 So. 813; Vincent v. Hines, 79 Fla. 564, 84 So. 614; Malsby v. Gamble, 63 Fla. 508, 57 So. 687; 20 C. J. 21, 26; 9 R. C. L. 956, 962.

That doctrine rests upon the premise that the remedy originally attempted was not in fact available; the party's resort to it in these circumstances being a mere mistaken hypothesis, not a choice. The doctrine has no application where the remedy originally attempted is in fact available and coexisted with the remedy thereafter sought, for then there is an election. See the cases last cited.

Though the state Supreme Court vacated its judgment of reversal and dismissed the appeal, its opinion that the mortgage existed and was subject to foreclosure is not vacated, but stands of record. Aside from that, however, the stipulation of facts upon which this replevin action was tried recites that "pursuant to said contract (of sale) a chattel mortgage was executed to the plaintiff covering the property...