Priest v. Foster
| Decision Date | 31 January 1897 |
| Citation | 69 Vt. 417,38 A. 78 |
| Court | Vermont Supreme Court |
| Parties | PRIEST v. FOSTER et al. |
Exceptions from Rutland county court; Rowell, Judge.
Special assumpsit by John R. Priest, administrator, against Foster & Jaquith, to recover for property leased to defendants, and which they agreed to return in as good condition as when received, but failed to do, it having been burned. Plea, the general issue, with notice. Judgment for plaintiff. Defendants except. Affirmed.
Butler & Maloney, for plaintiff.
W. W. Stickney and J. G. Sargent, for defendants.
The plaintiff obtained judgment in the court below for damages that had accrued to him by reason of the defendants' breach of a contract to repair, keep in repair, and return in as good condition as when they took it, a certain mill and machinery therein. While the defendants were in the occupancy of the mill under this contract, it was destroyed by fire. Thereupon the plaintiff brought a suit against the defendants, declaring in case, and thereby charged that, while the defendants were in the occupancy of the mill, it became their duty to manage and use the mill and premises in a careful and prudent manner, so that the same might not be injured and destroyed; that the defendants, not regarding their duty, were careless and negligent in the management of the property, by putting upon the premises a boiler and smokestack, and running and operating the same, and neglecting to keep the property insured for the benefit of the plaintiff, and by wholly neglecting to care for the property so that it might not be destroyed; and that, by reason of the carelessness and negligence aforesaid, the property was wholly destroyed. To this declaration the defendants pleaded not guilty, and the cause was heard by a referee, who failed to find that the fire was caused by the negligence of the defendants, or that the defendants agreed to keep the property insured for the benefit of the plaintiff, and so reported, but did find that by the terms of the contract under which the defendants went into possession of the mill and machinery they were to take the property as it was, and leave it as good as they found it. After the report had been filed in court, the plaintiff asked leave to file an amended declaration, setting forth, among other things, the defendants' agreement to leave the property as good as they found it, and that they had not done so. The court held that the proposed amendment was for a different cause of action from that set forth in the original declaration, denied the plaintiff's motion, and rendered judgment on the report for the defendants. The defendants claim that the judgment in the first suit is conclusive as to the terms of the contract under which they took possession of the property, and that its terms were not open to dispute in the present suit. The terms of the original contract were not put in issue by the pleadings in the former suit; and the court refused to allow an amendment that would put the defendants' liability under the contract in issue, because the same was for a different cause of action from that declared upon in the original declaration, and thereby held that the defendants' liability under their contract to return the property could not be litigated in that action. This holding is conclusive upon the question of whether the defendants' liability under the contract was in issue or determined: and the plaintiff is not concluded by the finding of the referee upon an issue not made by the pleadings, which was not, and could not be, litigated in that action. In order to estop a party from proving a fact because the fact has been found against him in a former suit, it must clearly appear that the precise question was adjudicated in such suit; and, if the record relied upon leave this in doubt, there is no estoppel. Aiken v. Peck, 22 Vt. 255; Tarbell v. Tarbell, 57 Vt. 492; Gray v. Pingry, 17 Vt. 419; Gilbert v. Thompson, 9 Cush. 348; Russell v. Place, 94 U. S. 606.
The more important inquiry is whether the plaintiff, by attempting to charge the defendants with the loss of the property in action of tort, on the ground that the damage was caused by the defendants' negligence, and failing in such action, is precluded from resorting to the present action to recover the damage he has sustained by reason of a breach of the defendants' contract to repair, keep in repair, and return the property in as good condition as when they took it. To constitute the defense of waiver by election of remedies, the remedies must be inconsistent; as where one action is founded on an affirmance, and the other upon a disaffirmance, of a contract. Where two remedies are consistent, so that resort to one is not a disaffirmance of the other, either or both may be prosecuted until satisfaction is obtained. There are numerous authorities in support of this holding. Thus, in Bank v. Taylor, 66 Vt. 574, 29 Atl. 1012, the defendant, by false and fraudulent representations in respect to his farm being free from incumbrance, induced the plaintiff to surrender to him certain trade paper, and take in lieu thereof his note, secured by mortgage upon his farm. It was held that the plaintiff had two causes of action,—one in contract upon the note, and the other in tort for the false representations; that the plaintiff might prosecute either or both of these causes of action to a recovery; that both proceeded on the theory of affirming the contract; and that one did not allege what the other denied. In Johnson v. Worden, 47 Vt. 457, it is held that a conditional vendor of personal property does not lose his lien upon the property by proving the sum due upon the contract of sale against the vendee's estate in insolvency; and that, after such proof, he may maintain an action against the vendee for its conversion. In the opinion it is said: ...
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King v. Richards-Cunningham Company, 1809
...290, 45 A. L. R. 9; Willis v. Wrenn, 127 S.E. 312; David v. Ryan, 47 Iowa 642; Gettysburg Electric Ry Co. v. Company 200 P. 327; Priest v. Foster, 69 Vt. 417; Black LaPorte, 271 F. 620. Defendant agreed to yield up the premises at the end of the term in as good order and condition as when e......
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Holbrook v. J. J. Quinlan & Co.
...it turned out that he never had the remedy he sought to enforce, and the pursuit of a remedy which does not exist is no bar. Priest v. Foster, 69 Vt. 417, 38 Atl. 78; Whipple v. Stephens, 25 R. I. 563, 57 Atl. 375; Bunch v. Grave, 111 Ind. 351, 12 N. E. 514; Agar v. Winslow, 123 Cal. 587, 5......
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Frank F. Holbrook v. J. J. Quinlan & Co.
...since it turned out that he never had the remedy he sought to enforce, and the pursuit of a remedy which does not exist is no bar. Priest v. Foster, 69 Vt. 417, Whipple v. Stephens, (R. I.) 57 A. Bunch v. Grave, 111 Ind. 351; Agar v. Winslow, (Cal.) 69 Am. St. Rep. 84; Zimmerman v. Robinson......
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Lillian P. Mayo, Admx. v. Elmer F. Claflin
...of the application of this rule. The selection of one of two inconsistent remedies is a conclusive waiver of the other. Priest v. Foster, 69 Vt. 417, 38 A. 78. Proceeding with his defence is a final waiver of defendant's exception to the overruling of his motion for a verdict made at the cl......