Snow v. Alley
| Decision Date | 04 April 1892 |
| Parties | SNOW v. ALLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.P. Harriman,
E.C. Bumpus, and R.F. Simes, for plaintiff.
A.A Ranney and F. Ranney, for defendant.
This is an action for the breach of an alleged contract to buy of the plaintiff 32 Postal Telegraph Company bonds for half their par value, viz., for $16,000, and to lend the plaintiff $20,000 on other like bonds, in consideration of the plaintiff's agreeing to give the defendant 75 like bonds.
The defenses are a general denial, and that the plaintiff has precluded himself from this action by electing a different remedy.
The case was tried before a jury, and at the conclusion of the evidence the judge ruled that the defense had been maintained, and directed a verdict for the defendant.
The ground on which the defendant goes is this: At the time of the transaction between the plaintiff and the defendant whatever it was, the plaintiff delivered to the defendant 150 bonds. According to the plaintiff's version, only 75 of these were to come from him ultimately, and the defendant agreed, in the event which happened, to return 75 of them. The plaintiff sued the defendant in trover for 150 bonds in the case which was before this court in 144 Mass. 546, 11 N.E. 764, and 151 Mass. 14, 23 N.E. 576.
In that suit he took the ground that the defendant induced him to part with the bonds by making promises which he intended not to keep, and that this entitled him to repudiate the bargain and to demand back the 150 bonds. But, if the plaintiff failed on this ground, still, if the jury believed his testimony as to what the bargain was, he could recover on the same count for the 75 bonds which belonged to him, and which he was entitled to demand and had demanded, as he said.
That either the 150 bonds or the 75 bonds could be recovered for under the same count is an accidental result of the rules of pleading and practice in trover. But, although the same count answered for a recovery either way, it is plain that the two claims are inconsistent and alternative. That for the 150 bonds stood on a repudiation of the contract; that for the 75 was in pursuance of it. The jury found for the plaintiff for the value of 75 bonds; and it appears, not only from the terms in which the case was left to them by the charge, but from their answers to questions put to them by the court, that they did not find that the plaintiff was entitled to repudiate the contract; that they accepted his version of what the contract was; and that they found that under it he remained owner, and was entitled to a return, of 75 bonds, and gave him their verdict on that ground.
If, then, the former proceeding establishes anything, it establishes that the plaintiff is entitled to insist upon his contract, since, although he began his suit intending to repudiate it, if he could make out a case for doing so, he took his judgment on the footing that it was in force. But, apart from this answer, the defendant's argument rests on a misapprehension of the nature of election. Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of choice. Metcalf v. Williams, 144 Mass. 452, 11 N.E. 700. But the fact that a party wrongly supposes that he has two such rights, and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that. There would be no sense or principle in such a rule. Butler v. Hildreth, 5 Metc. (Mass.) 49, 52; Snow v. Alley, 144 Mass. 546, 554, 560, 11 N.E. 764; Whiteside v. Brawley, 152 Mass. 135, 24 N.E. 1088; Morris v. Rexford, 18 N.Y. 552, 557.
It was suggested, but not much pressed, that, if ...
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