Kennedy v. Manry
| Docket Number | 1,706. |
| Decision Date | 09 November 1909 |
| Citation | 66 S.E. 29,6 Ga.App. 816 |
| Parties | KENNEDY v. MANRY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While one may pursue any number of concurrent and consistent remedies, he will not be permitted, after the choice of 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.
Where one has the option either to affirm or to disaffirm a sale and thereby fix the relative status of the parties to the contract, and exercises this option, he is bound by his election, regardless of the effect of his election upon the rights of others, and regardless of the knowledge or conduct of other parties in interest.
(a) The foreclosure of a mortgage upon personal property as the property of the mortgagor is such a disaffirmance of title by the mortgagee as waives the assertion of title, although the mortgage may be only a part of a contract which also contains a reservation of title, and although the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover.
"Waiver" and "estoppel" are not synonymous terms. Waiver belongs, in a sense, to the family of estoppel; and yet estoppel in pais has connections that are no kin to waiver. Waiver is voluntary and intentional; estoppel in pais may arise from an involuntary and unintentional act. Estoppel results from an act which operates to the injury of the other party; and there may be a waiver, although the opposite party is beneficially effected. A waiver by election results where a choice is exercised between inconsistent remedies (as where one action is founded on affirmance and the other upon disaffirmance of a voidable sale of the property), and in such a case any decisive act of affirmance or disaffirmance done with knowledge of the facts; determines the legal right of the parties once for all. Estoppel may arise even between consistent remedies; but it depends rather upon what a party caused his adversary to do, while waiver depends upon what one himself intends to do.
To constitute an estoppel by conduct, there must be a false representation or concealment of fact, knowledge of the party making the one or concealing the other, ignorance of the truth by the party affected, intentional act by the person seeking to influence the conduct of the other, and the person complaining must have been induced to act by reason of such conduct of the other and must have changed his position in fact for a worse (citing 3 Words and Phrases, p. 2598).
A judgment will be affirmed, if it is right, even though the reason assigned for its rendition is wrong.
Error from City Court of Forsyth; W. M. Clark, Judge.
Action by J. L. Kennedy against B. H. Manry. Judgment for defendant and plaintiff brings error. Affirmed.
Persons & Persons, C.J. Lester, and O. T. Lester, for plaintiff in error.
B. H Manry, pro se.
The decision in this case turns upon whether the plaintiff in error, by the election of a remedy inconsistent with that which he is now attempting to assert, has waived a right which he might otherwise have enforced. It is well settled that one may pursue any number of concurrent and consistent remedies. It is also settled, as well argued by counsel for plaintiff in error, that an estoppel does not generally result unless the opposite party is misled and caused to act to his prejudice. To constitute an estoppel by conduct, there must be (1) a false representing or concealment of fact; (2) it must be in the knowledge of the party making the one or conceding the other; (3) the person affected thereby must be ignorant of the truth; (4) the person seeking to influence the conduct of the other must act intentionally for that purpose; (5) the person complaining must have been induced to act by reason of such conduct of the other; and (6) he must in fact act upon it in such a manner as to change his position for a worse. See 3 Words and Phrases, p. 2598; Tinsley v. Rice, 105 Ga. 290, 31 S.E. 174; Roberts v. Davis, 72 Ga. 819; Ross v. Cooley, 113 Ga. 1047, 39 S.E. 471 (2).
While, however, this case was argued apparently with a view of showing that nothing in the conduct of Kennedy amounts to an estoppel, and it may be conceded that Manry was in no sense deceived or overreached, and that he has not sustained loss by any act of Kennedy, still, in our opinion, none of these has any bearing upon the question before us. Let it be conceded that Manry was as conversant with all of the details of the transaction between Kennedy and Mason as Kennedy himself, and that he acted entirely upon his own judgment, influenced by nothing that Kennedy did or said. Kennedy would not be estopped by conduct; but it would not follow from this that, after having elected to foreclose his note as a mortgage, he could change his base, disaffirm his sale, and proceed by trover to assert that the mule in question was his own property. We bear in mind that there is a difference between an election of remedies and a mistake of remedies, and that a person who prosecutes an action or suit based upon a remedial right which he supposes he has, and is defeated because of the error, is not precluded from prosecuting subsequent action or suit based upon a consistent remedial right. In other words, if Kennedy had previously supposed that he could foreclose his paper as a mortgage, when as a matter of fact he could not, he would not be precluded thereafter from asserting title in himself and proceeding by trover to recover the mule in question.
But it appears from the two notes in the record that each of them could properly have been foreclosed as mortgages. They were so foreclosed. This court did not hold, when another branch of this case was before us, that the papers now before us could not be foreclosed as mortgages, or whether Kennedy was or was not entitled to the funds in the hands of the constable. Kennedy v. Rumble, 4 Ga.App. 415, 61 S.E. 839. The case went off because there was no proper assignment of error in the bill of exceptions, and the judgment of the lower court stood affirmed, because it was not properly excepted to. The defense of the defendant in error does not depend upon the equitable doctrine of estoppel in pais, the essentials of which we have noted above, but rather upon the plaintiff's election of a remedy inconsistent with the one he now seeks to assert, whereby he waived his right to assert, a right which he possessed, independently of its effect upon the other party.
When Kennedy was about to assert his rights under the notes in the record, he had the option either to proceed to foreclose his notes as mortgages, or to assert the title which he had reserved therein and proceed by trover to recover the property. In other words, he had the option either to affirm or to disaffirm the sale of the mules. This right was not affected by Manry's knowledge or lack of knowledge, and could be asserted,...
To continue reading
Request your trial