Ireland v. Waymire

• Decision Date: 10 July 1920
• Docket Number: 22,792
• Citation: 107 Kan. 384,191 P. 304
• Parties: J. C. IRELAND, Appellee, v. GEORGE W. WAYMIRE et al. (JUANITA HILL, Intervener, Appellant)
• Court: Kansas Supreme Court

191 P. 304

107 Kan. 384

J. C. IRELAND, Appellee, v. GEORGE W. WAYMIRE et al. (JUANITA HILL, Intervener, Appellant)

No. 22,792

Supreme Court of Kansas

July 10, 1920

Decided July, 1920

Appeal from Linn district court; EDWARD C. GATES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVERSION OF PROPERTY--Effect of Election of One of Two Inconsistent Remedies. Where property is wrongfully obtained from the owner by another and converted to his own use, the former owner has two remedies open to him, one to treat the title as having passed, and sue for its value, and the other to sue for the recovery of the specific property, and when with knowledge of the facts, he sues for the value of the property converted, the election is complete, and the other remedy is no longer available to him.

2. SAME--Dismissal of Action--Does Not Avoid the Election. The fact that the first action did not proceed to judgment, but was dismissed, does not avoid the effect of the election. The commencement of an action or any decisive act of a party determines the election and gives finality to it, regardless of its result.

John A. Hall, of Pleasanton, for the appellant.

Harry W. Fisher, of Mound City, for the appellee.

OPINION

JOHNSTON, C. J.:

This case involves the doctrine of election of remedies which was invoked in a controversy as to the right to the possession of an automobile. The car was in the possession of the defendant Waymire, and the intervener, Juanita Hill, of Arizona, finding him in that state, brought an action against him there, alleging that he had obtained possession of her car, refused to return it upon demand, and had converted it to his own use. She therefore asked judgment for $ 1,120, the value of the car, with interest from the time of the conversion. He answered that she never was the owner of the car, that he had purchased and paid for it and was not indebted to her in any sum. Subsequently, she dismissed her action in Arizona, and undertook to recover possession of the car in this proceeding. Ireland, the plaintiff herein, brought this action to recover $ 1,025 from Waymire, alleged to have been fraudulently obtained from plaintiff, and obtained an order of attachment which was levied upon the car in question. Upon a trial the attachment was sustained, and a judgment against Waymire for the amount of the debt was rendered. After an order for the sale of the attached property had been issued, Juanita Hill intervened in the action, alleged that she owned the car and asked for the possession of it. She alleged that the location of the car had been concealed from her, and therefore she had brought the action in Arizona, but upon learning that the car was in Kansas, she had dismissed that action and was seeking a recovery of it in this action. Ireland's answer to her interplea was a general denial and the defense that by her action in Arizona she had elected to treat the automobile as the property of Waymire and was therefore precluded from prosecuting an action for the recovery of the specific property. The facts related were set forth in the pleadings, and the court sustained a motion made by the plaintiff for judgment against the intervener upon the pleadings.

In her appeal the intervener insists that, while she had alleged the conversion of the property by Waymire, she did not aver that it had been sold to him or that he had acquired it by contract, but had alleged ownership of the property and was asking a recovery because she had been wrongfully deprived of it. It appears, however, that she did not ask for the specific possession of the property, but explicitly alleged that Waymire had converted it to his own use, and she proceeded upon the theory that he had made the property his own, and therefore asked that he be required to pay for it. Two remedies were open to her, one for the recovery of the specific property, and the other to waive the tort and sue on the implied obligation of Waymire to pay for the property which he had converted. She chose the latter remedy and is conclusively bound by her election.

It has been consistently held throughout a long line of decisions in this state, that where a party having the right to choose one of two inconsistent remedies, deliberately elects to follow one of them, with knowledge or the means of knowledge of the facts, he is effectually barred from thereafter making a new election and pursuing the other remedy. (Smith v. McCarthy, 39 Kan. 308, 18 P. 204; Plow Co. v. Rodgers, 53 Kan. 743, 37 P. 111; Evans v. Rothschild, 54 Kan. 747, 39 P. 701; National Bank v. National Bank, 57 Kan. 115, 45 P. 79; Burrows v. Johntz, 57 Kan. 778, 48 P. 27; Blaker v. Morse, 60 Kan. 24, 55 P. 274; Bank v. Haskell County, 61 Kan. 785, 60 P. 1062; Railway Co. v. Henrie, 63 Kan. 330, 65 P. 665; Remington v. Hudson, 64 Kan. 43, 67 P. 636; James v. Parsons, 70 Kan. 156, 78 P. 438; Ullrich v. Bigger, 81 Kan. 756, 106 P. 1073.) The doctrine is an application of one phase of the law of estoppel which prevents one who comes into court asserting or defending his rights from taking and occupying inconsistent positions.

"A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; 'a man shall not be allowed,' in the language of the Scotch law, 'to approbate and reprobate.'" (Bigelow on Estoppel, 6th ed., 732.)

Another statement of the basis of the rule and of its application in cases like the one in hand is--

"The reason of this rule, as applied to a case of conversion where the tort is waived, is that plaintiff thereby elects to treat the transaction as...