A. Klipstein & Co. v. Grant
| Decision Date | 05 December 1905 |
| Docket Number | 1,488. |
| Citation | 141 F. 72 |
| Parties | A. KLIPSTEIN & CO. v. GRANT et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry A. Alexander and Shepard Bryan, for appellant.
Benj. F. Abbott, C. P. Goree, Jno. M. Slaton, Benj. Z. Phillips, L Z. Rosser, and Morris Brandon, for appellees.
The following is the opinion of Newman, District Judge, in the Circuit court:
I am satisfied that this bill must be dismissed, for the reason that complainants have already sought a remedy which is entirely inconsistent with the one they now seek. The suit which is shown by the pleadings to have been heretofore brought and prosecuted to a conclusion by Klipstein & Co. in the Circuit Court was upon the theory of the ratification of a sale by C. L. Allen to the Allen-Miles Company. The present proceeding is entirely inconsistent with the position taken in the former suit. The correct rule of law as I understand it on the subject is stated in 7 Encyc.Pl.& Pr.pp. 362, 363 364. The election of a remedy is considered by the authorities to be complete when suit is brought; certainly it is complete when carried to a conclusion. In Robb v Vos, 155 U.S. 13, 15 Sup.Ct. 4, 39 L.Ed. 52, the rule is stated in the syllabus in this way: 'When a party has two remedies, inconsistent with each other, any decisive act by him, done with knowledge of his rights and of the facts determines his election of his remedy. ' In the opinion, after quoting a number of authorities, the following occurs: 'The rule established by these cases is that any decisive act by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies. ' In this case of Robb v. Vos is a quotation from the opinion in Thompson v. Howard, 31 Mich. 309, 312, as follows: 'A man may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. ' The same doctrine is laid down in Bacon & Company v. Moody, 117 Ga. 207, 43 S.E. 482. For this reason the bill cannot be maintained.
I entertained some doubt, as was expressed at the hearing, and I still have some, as to whether the Allen-Miles Company should not have been made a party to this proceeding, and as to whether the case could properly proceed in the Circuit Court, instead of on the equity side of the bankruptcy court. But pressed above, on the merits of the proceeding.
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