Johnson-Brinkman Commission Co. v. Missouri Pac. Ry. Co.

• Decision Date: 18 December 1894
• Citation: 126 Mo. 344,28 S.W. 870
• Parties: JOHNSON-BRINKMAN COMMISSION CO. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

28 S.W. 870

126 Mo. 344

JOHNSON-BRINKMAN COMMISSION CO. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

ELECTION OF REMEDIES — ATTACHMENT — SUBSEQUENT REPLEVIN.

1. Where a seller hastily brings an attachment suit against the purchaser, and afterwards, on the advice of his attorney, dismisses it, he is not estopped from bringing replevin to recover the goods sold, in the absence of intervening rights, or change of position by or injury to anybody by reason of the attachment. 52 Mo. App. 407, reversed. O'Bryan v. Glenn, 17 S. W. 1030, 91 Tenn. 106, disapproved.

2. Even if there is no misconception by the seller as to his remedy, in such case, he is not estopped from bringing replevin. Johnson-Brinkman Commission Co. v. Central Bank of Kansas City, 22 S. W. 813, 116 Mo. 558, followed.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action of replevin by the Johnson-Brinkman Commission Company against the Missouri Pacific Railway Company. A judgment for defendant was affirmed on appeal by the Kansas City court of appeals, which certified the case to the supreme court. Reversed.

Lathrop, Morrow, Fox & Moore, for appellant. Elijah Robinson and Jos. S. Laurie, for respondent.

BURGESS, J.

This is an action of replevin for three car loads of wheat. On a trial before a jury in the circuit court of Jackson county, there was a demurrer interposed by defendant to the evidence, which was sustained, and final judgment rendered for defendant, against plaintiff, for the value of the wheat at the time of the trial, which was fixed at $1,237.34, and $92.80 for damages for its wrongful taking and detention. From the judgment, plaintiff appealed to the Kansas City court of appeals, where the judgment was affirmed; but that court certified the cause to this court because of the opinion of that court being in conflict with the opinion of the St. Louis court of appeals in Anchor Milling Co. v. Walsh, 20 Mo. App. 107, and Lapp v. Ryan, 23 Mo. App. 436.

On September 1, 1890, the Imboden Commission Company was a corporation engaged in the grain business at Kansas City, Mo. In the latter part of August of that year, the plaintiff sold and delivered to the Imboden Company a number of cars of wheat, among which were included the three cars here in controversy, which were then in the freight yard of the defendant company at that city. The sale was for cash on delivery. According to the custom which prevailed among grain dealers in Kansas City, the plaintiff furnished to the Imboden Company elevator receipts, certificates of weight, inspection certificate as to grade, invoices, and bills of lading, the bill of lading being issued by the defendant company. Immediately upon the receipt of said bill of lading, Imboden surrendered it to the defendant company, and obtained from said defendant company, in lieu thereof, another bill of lading for said wheat, whereby the wheat was to be delivered, upon the order of the Imboden Company, to C. H. Albers & Co., at St. Louis. As soon as Imboden received the bill of lading, he took it to the Central Bank in Kansas City, and indorsed and delivered it to said bank, with a draft thereto attached, upon Albers & Co., for $1,383.62, which was signed by the Imboden Company, and made payable to said bank. During the afternoon of the same day the Imboden Commission Company sent its check, drawn on the Central Bank, for $1,374.82, — the contract price for the wheat, — to the Johnson-Brinkman Commission Company. The Imboden Company kept its account with the Central Bank, and on September 1st its account was overdrawn several thousand dollars. In the afternoon of September 1st, — plaintiff becoming apprehensive that the check it had received from the Imboden Commission Company was likely to be dishonored, — Johnson, in company with Imboden, went to the Central Bank, presented the check, and demanded its payment, or a surrender of the Albers draft and bill of lading, but the bank declined to do either one. Johnson and Imboden then went to the latter's office, and, at Johnson's request, Imboden turned over to him, for the Johnson-Brinkman Commission Company, all its office furniture, to protect it on account of the sale of its wheat; Johnson taking possession of the office, and putting a notice on the door. They then went to the telegraph office; and, at Johnson's request, Imboden telegraphed Albers & Co. to pay no more drafts. Johnson also, immediately thereafter, notified the superintendent of defendant's freight yard at Kansas City to hold the wheat until further orders from the Johnson-Brinkman Commission Company. During the same evening, Johnson went to the office of his attorneys, and, after a short conference with them, sued out an attachment in the name of the Johnson-Brinkman Commission Company, as plaintiff, and against the Imboden Commission Company, as defendant. The petition alleged the sale and delivery of the wheat, and the affidavit for attachment averred that the sale was for cash on delivery, and that the Imboden Commission Company had failed to pay for the same. A writ of attachment was then issued by the proper officer, and the wheat seized by the sheriff. On September 9, 1890, plaintiff dismissed the attachment suit, and afterwards, on the same day, began the present action to recover possession of said wheat, and the same was delivered to it in pursuance of an order of delivery issued herein. On September 1st the Central Bank sent the bill of lading and draft upon Albers & Co. to its correspondent in St. Louis for collection. On the following day it was presented for payment, but Albers, having in the meantime been notified by Imboden to pay no more drafts, declined to pay it at that time, but subsequently paid it, at the request of the Central Bank. This was after the cashier of the Central Bank had gone to St. Louis, and assured Albers that Imboden had no interest in the wheat, that the bank was the owner thereof, and that he (Albers) should receive the wheat, if paid for. It was after this assurance, and relying thereupon, that Albers, without any knowledge, as claimed by him, of the claim of Johnson-Brinkman Commission Company, paid the draft.

Plaintiff's first contention is that the court erred in ruling, as a matter of law, that the mere act of plaintiff in bringing an attachment suit against the Imboden Commission Company, and attaching the wheat as its property, and subsequently dismissing it before final judgment, and the commencement of this action, was a conclusive election between inconsistent remedies, and a complete bar to this action. Upon this question there is a direct conflict in the opinion rendered in the case by the Kansas City court of appeals (52 Mo. App. 407) and the decisions of the St. Louis court of appeals in Anchor Milling Co. v. Walsh, 20 Mo. App. 107, and Lapp v. Ryan, 23 Mo. App. 436. It was held by the Kansas City court of appeals, in this case, that as the plaintiff had an election between inconsistent remedies, as where one action is founded on an affirmance of a voidable sale or contract, any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties once for all, and that the institution of the attachment suit by plaintiff against the Imboden Commission Company was such a decisive act, and a bar to this suit; while, in the Anchor Milling Co. Case, it was held that the levy of an attachment upon chattels, as the defendant's property, does not prevent the plaintiff from subsequently seizing the same property, in replevin, as his own. This case was followed and approved by the same court in the Lapp Case. Both of the cases last named were followed and approved by this court in Johnson-Brinkman Co. v. Central Bank of Kansas City, 116 Mo. 558, 22 S. W. 813. But it is insisted by counsel for defendant that the three cases last named are not in accord with the great weight of authority which is, as he claims, as announced in this case (52 Mo. App. 407), and should be modified or overruled.

It is well settled law where a party has the right to pursue one of two inconsistent remedies, and he makes his election, and institutes his suit, that in case the action thus begun is prosecuted to final judgment, or the plaintiff has received anything of value under a claim thus asserted, he cannot thereafter pursue another and inconsistent remedy. Nanson v. Jacob, 93 Mo. 331, 6 S. W. 246; Estes v. Reynolds, 75 Mo. 563; Stoller v. Coates, 88 Mo. 514; Bradley v. Brigham, 149 Mass. 141, 21 N. E. 301; Farwell v. Myers, 59 Mich. 179, 26 N. W. 328; Ewing v. Cook, 85 Tenn. 332; Bank v. Beale, 34 N. Y. 473; Fields v. Bland, 81 N. Y. 239; Boots v. Ferguson, 46 Hun, 129; Carter v. Smith, 23 Wis. 497; Wheeler v. Dunn, 13 Colo. 428, 22 Pac. 827; Thomas v. Joslin, 36 Minn. 1, 29 N. W. 344; Fowler v. Bank, 113 N. Y. 450, 21 N. E. 172. There is also another class of decisions, which hold that a creditor, having simply elected to pursue one of two inconsistent remedies, is bound thereby, and that he cannot subsequently abandon the one first chosen, and pursue the other. Thus it is held in O'Donald v. Constant, 82 Ind. 212, that "while a creditor of whom the debtor had bought goods, not intending to pay for them, but to use them in preferring other creditors, may doubtless disaffirm the sale, and recover his goods, unless resold to an innocent purchaser, yet by bringing an attachment suit...