Redhead Bros. v. Wyoming Cattle Inv. Co.

• Decision Date: 16 January 1905
• Citation: 102 N.W. 144,126 Iowa 410
• Parties: REDHEAD BROTHERS, Appellees, v. THE WYOMING CATTLE INVESTMENT COMPANY, Appellants
• Court: Iowa Supreme Court

102 N.W. 144

126 Iowa 410

REDHEAD BROTHERS, Appellees, v. THE WYOMING CATTLE INVESTMENT COMPANY, Appellants

Supreme Court of Iowa, Des Moines

January 16, 1905

Appeal from Polk District Court.-- HON. W. H. MCHENRY, Judge.

Reversed.

Read & Read, for appellant.

Carr Hewitt, Parker & Wright, for appellees.

OPINION

THE opinion states the facts necessary to an understanding of the case.--Reversed.

WEAVER, J.

The plaintiffs bring this action at law to recover judgment against defendant corporation, stating its claim or cause of action in two counts. The first count alleges the sale by plaintiffs to defendant of twenty Hereford bulls, upon terms stated in a written contract, reading as follows:

Des Moines, Iowa Sept. 24, 1900. This Agreement Witnesseth: That Redhead Bros., of Des Moines, Ia., have this day sold to The Wyoming Cattle and Investment Company, of Des Moines, Ia for shipment to their ranch twelve miles east of Cheyenne Wyoming, twenty selected thoroughbred Hereford bulls, to be picked out by Geo. S. Redhead. In consideration of the above sale The Wyoming Cattle and Investment Company will pay to said Redhead Bros. twenty-six hundred dollars, ($ 2600.00) and the delivery of twelve (12) shares of paid up non-assessable stock in The Wyoming Cattle and Investment Company. Cattle will be delivered on the cars at Des Moines or other convenient point, on or before July 1, 1901, when payment shall be made. Redhead Bros., By Geo. S. Redhead.

It is alleged that, pursuant to said agreement, George S. Redhead did pick out the requisite number of bulls, and on July 1, 1901, plaintiffs tendered a delivery of them to defendant on the cars at Des Moines, Iowa but defendant refused, and has ever since refused, to receive or pay for said animals. On these allegations the plaintiffs, expressing their continued readiness to make the delivery, demand judgment for the contract price. The second count of the petition restates the foregoing allegations of fact, and seeks to recover an additional sum for services rendered and expenses incurred in keeping the bulls from the date when defendant refused to receive them. Answering the petition, the defendant admits the making of the contract, and admits that said plaintiffs did tender the delivery of twenty bulls, but denies that they were of the kind, character, or description designated in the written agreement. Further answering, defendant says that George S. Redhead, mentioned in the contract, was a member of the plaintiff firm, and represented himself as being a man of experience and skill in the business, and as having special knowledge of the quality, fitness, and value of bulls for the purposes for which they were being purchased, and would give defendant the benefit of his knowledge and experience in the selection of first-class animals, and that, relying upon such representations and promises, defendant entered into said contract. It is further alleged that from and after April 1, 1901, defendant was ready and willing to carry out the contract according to its terms, but the bulls picked out by the said George S. Redhead and tendered to defendant were of inferior quality, unfit for the purposes for which the purchase was made, and were not of the kind, quality, or value called for by the contract, for which reason the tender was refused. The defendant also pleaded a counterclaim, which was subsequently withdrawn by the court from the jury, and is not involved in this appeal. Some months after the issue was joined, plaintiffs amended their petition, stating a claim for damages on account of the defendant's alleged breach of the contract of purchase, to which defendant answered that, by instituting the suit for a recovery of the contract price of the bulls, plaintiffs were bound by their election of said remedy and waived their right to a recovery of damages. There was a trial to a jury, and verdict for the plaintiffs in the sum of $ 2,747.50. A motion for a new trial was overruled, and from the judgment rendered upon such verdict the defendant appeals.

I. The appellant urges that a claim to recover the full contract price as for a completed sale, and a claim to recover damages for defendant's refusal to accept the property, are of such inconsistent nature that, having brought suit upon the former, plaintiffs are bound by the election thus made, and must recover upon that theory or not at all. The point is pressed upon our attention with much earnestness, but we think it cannot be sustained. If the two claims asserted by plaintiffs were essentially inconsistent, the rule relied upon by counsel might well be invoked. In no case decided by this court has the election of remedies been more thoroughly considered than in Elevator Co. v. U. P. Ry. Co., 97 Iowa 719, 66 N.W. 1059. Upon a careful review of the authorities it was there said: "A man may not take two contradictory positions, and where he has 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 means of knowledge of such facts as would authorize a resort to each, will preclude him from thereafter going back and electing again."

In the case at bar the claim presented by the amendment involves no repudiation or denial of the facts alleged in the original pleading. Both demands are based upon the theory of an enforceable contract of sale, and a refusal of the defendant to receive and pay for the property. If plaintiffs were right in their contention, and had made a good and sufficient tender of delivery, they could keep their tender good and recover the full contract price; or, if the market value of the property was less than the contract price, they could give defendant credit for such value and recover the difference as damages. If, after having brought suit for the contract price, plaintiffs concluded that, in view of a protracted contest, it was better to avoid the accumulating burden which the keeping of the animals in readiness for delivery would involve, and to modify their claim to one for damages, we see no good reason why it should not be permitted. Or if, after beginning their action and before trial, they discovered that a demand for the purchase price was not sustainable, we think they were at liberty to abandon it, and, by amendment or by the institution of a new suit, ask a recovery in damages. The claim in either case is based upon the written contract, and, in one form as well as in the other, a recovery gives the plaintiffs neither more nor less than the benefit of the sale which the contract witnesses. If the defendant's theory of the facts be correct, there was never a completed sale, and the title to the property never passed. If this be true, plaintiffs' action to recover the contract price could not be sustained, and in such case the abandonment of that claim and the setting up of a claim for damages would not violate the rule as to the election of remedies, because no remedy under the first form of their demand had ever been open to them. In other words, an election exists only where two or more inconsistent remedies are open to the party and he is at liberty to pursue any one of them. It cannot exist between consistent and concurrent remedies, or between a rightful remedy and one which the party may mistakenly suppose to be applicable. As bearing more or less directly upon this view of the law, see 7 Encyclopaedia Pleading and Practice, 362; Ames v. Moir, 130 Ill. 582 (22 N.E. 535); Kingsbury v. Kettle, 90 Mich. 476 (51 N.W. 541); Wright v. Ritterman, 1 Abb. Pr. 428; Kinny v. Kiernan, 2 Lans. 492; Smith v. Bricker, 86 Iowa 285, 53 N.W. 250.

II. Concerning the alleged tender, the evidence tends to show the following facts: A few days prior to July 1, 1901, one of the plaintiffs called upon the defendant's representative, D H. Kooker, in the city of Des Moines, and had some conversation with him regarding the delivery of the bulls, and Kooker expressed a wish to see the animals. It was arranged that he should go to the plaintiffs' farm for that purpose, and on July 2d the visit was made. George S. Redhead pointed out to Kooker two pens containing ten bulls each, and informed him that these were the animals which he had selected and proposed to deliver in fulfillment of the contract. One lot of ten was represented as registered thoroughbreds, while the other lot was unregistered, but was claimed to come within the terms of the agreement. Kooker objected to the last-mentioned lot, not only because they were unregistered, but also because of their alleged inferior quality, and refused to accept them. At some time during this visit Kooker made a request for a list of the bulls, but it was refused, or, at least, was not then furnished. The interview seems to have ended with no definite understanding between the parties. On the following day one of the plaintiffs called upon Kooker, giving him a list of the names, registry numbers, and ages of twenty registered bulls which they offered to deliver, but Kooker refused to accept them for the defendant. The list referred to included the ten registered bulls which had been offered to Kooker on the preceding day, and ten others which George S. Redhead had thereafter selected and substituted in place of the ten which were unregistered. In this latter selection was a calf then but little more than five months old. While plaintiffs allege a tender of the bulls called for by the contract, and defendant admits that a tender was made, it appears that the allegations and admission do not refer to the same offer. As we have already noted, the testimony on part of the plaintiffs tends to show two separate and distinct offers to...