Terry v. Munger

• Decision Date: 15 April 1890
• Citation: 121 N.Y. 161,24 N.E. 272
• Parties: TERRY et al. v. MUNGER.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 161

24 N.E. 272

TERRY et al.

v.MUNGER.¹

Court of Appeals of New York.

April 15, 1890.

Appeal from supreme court, general term, fifth department.

J. N. Dunning, for appellant.

George Bowen, for respondent.

PECKHAM, J.

The plaintiffs commenced an action heretofore against two other persons, named, respectively, Kipp and Munger, on account of the same transaction for which this action was brought against the above-named sole defendant. The character of the complaint in that action was before this court, and the case is reported in 88 N. Y. 629, [Goodwin v. Griffis.] The defendants in that case were charged with detaching and carrying a way from the mill the machinery in question in that case, and also in this, and using it for themselves. It was there held, upon a perusal of the complaint, that the action was of a nature ex contractu, and not ex delicto, for the wrong done plaintiffs by the conversion of their property. As the defendantstherein had not, after their conversion of it, themselves sold or otherwise disposed of the property which they acquired from the plaintiffs, the fiction of the receipt by defendants of money for the sale of the property, which ex aequo et bono they ought to pay back to plaintiffs, and which they therefore impliedly promised to pay back, could not be indulged in, and the position of the parties would have been at one time the subject of some doubt, whether there was any foundation for the doctrine of an implied promise in such case, or any possibility of the waiver of the tort committed by the defendants in the conversion of the property. In some of the states it has been denied, and such denial placed upon the ground that the property remained in the hands of the wrong-doer, and therefore, no money having been received by him in fact, an implied promise to pay over money had and received by defendant to the plaintiff's use did not and could not arise. Such was the case of Jones v. Hoar, 5 Pick. 285. But the great weight of authority in this country is in favor of the right to waive the tort, even in such case. If the wrong-doer has not sold the property, but still retains it, the plaintiff has the right to waive the tort, and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged as for money had and received by him to the use of the plaintiff. The contract implied is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. If the transaction is thus held by the plaintiff as a sale, of course the title to the property passes to the wrong-doer, when the plaintiff elects to so treat it. See Pom. Rem. (2d Ed.) §§ 567-569; Putnam v. Wise, 1 Hill, 234, 240, and note by Mr. Hill; Berly v. Taylor, 5 Hill, 577, 584;Norden v. Jones, 33 Wis. 600, 605;Cummings v. Vorce, 3 Hill, 283; Spoor v. Newell, Id. 307; Abbott v. Blossom, 66 Barb. 353. We think this rule should be regarded as settled in this state. The reasons for the contrary holding are as well stated as they can be in the case above cited from Massachusetts, (5 Pick.,) and some of the cases looking in that direction in this state are cited in the opinion of TALCOTT, J. in the case reported in 66 Barb., supra. We think the better rule is to permit the plaintiff to elect, and to recover for goods sold, even though the tort-feasor has not himself disposed of the goods.

There is no doubt that the complaint in the former case, reported in 88 N. Y., proceeded upon the theory of a sale of the property to the defendants in that action, and it was so construed by this court, and we have no inclination to review the correctness of that decision. We have, then, the fact that the defendants in that action were sued by the plaintiffs herein, upon an implied contract to pay the value of the property taken by them, as upon a sale thereof by plaintiffs to them. The plaintiffs having treated the title to the property as having passed to the defendants in that suit by such sale, can the plaintiffs now maintain an action against another person, who was not a party to that action, to recover damages from him for his alleged conversion of the same property, which conversion is founded upon his participation in the same acts which plaintiffs in the old suit have already treated as constituting a sale of the property? We think not. The judgment roll in the former action was received in evidence upon the trial of this case, against the objection of the plaintiffs, and notwithstanding the fact that the defendant herein was not a party to such action. It appears that all the facts surrounding the transaction as to the taking of the property were known to the plaintiffs at the time when they commenced their action on the implied contract of sale. The plaintiffs objected to the introduction of the judgment roll as incompetent and immaterial, and that there was no such defense set up in the answer.

The plaintiffs claim that the admission of such judgment violated the well-known general rule that a judgment is not binding upon any but parties and privies. We think the decision does not trench upon the rule in question. If the judgment had been in troduced for the purpose of proving any fact adjudicated thereby, any fact in litigation therein, or which properly might have been so litigated, the rule would doubtless apply, and no such fact would or could be proved in favor of the defendant herein as against the plaintiffs by such judgment, because the defendant was not a party or privy to it. It was not by way of estoppel, however, that the judgment was admissible. It was admissible for the sole purpose of showing that the plaintiffs had elected to treat the taking of this property as a sale, and this was shown by a perusal of the complaint therein. Any decisive act of the plaintiffs, with knowledge of all the facts, would determine their election in such a case as this. Sanger v. Wood, 3 Johns. Ch. 416, 421. The proof that an action of that nature had been in fact commenced would have been just as conclusive upon the plaintiffs upon the question of election (proof of knowledge of all the facts at that time being given) as would the judgment have been. It was not necessary that a judgment should follow upon the action thus commenced. In those cases, where the commencement of an action has not been regarded as an election of remedies, the fact has appeared that the plaintiff at the time of its commencement was not aware of the facts which would have enabled him to elect, or, at least, it did not appear that he was acquainted with the facts when he commenced his action. Such is the case in Foundry Co. v. Hersee, 103 N. Y. 25, 9 N. E. Rep. 487. Here the plaintiffs knew all the facts when they sued the other defendants.

The case of Conrow v. Little, 115 N. Y. 387, 393, 22 N. E. Rep. 346, is to the effect that the commencement of the action, where all the facts are known, is conclusive evidence of an election. Judge DANFORTH in that case, in speaking of plaintiff's election to affirm or avoid the contract therein spoken of, said the plaintiffs could affirm or rescind it. ‘They could not do both, and there must be a time when their election should be considered final. We think that time was when they commenced an action for the sum due under the contract.’ It was also held that the discontinuance of that action was immaterial. It was the fact that the plaintiffs once elected their remedy and acted affirmatively upon such election that determined the issue. After that the option no longer existed, and it was of no consequence, therefore, whether the plaintiffs did or did not make their choice effective. When it becomes necessary to choose...