The Johnson-Brinkman Commission Company v. The Missouri Pacific Railway Company
| Decision Date | 09 January 1895 |
| Parties | The Johnson-Brinkman Commission Company, Appellant, v. The Missouri Pacific Railway Company |
| Court | Missouri Supreme Court |
Appeal from circuit court, Jackson county; John W. Henry, Judge.
Action of replevin by the Johnson-Brinkman Commission Company against the Missouri Pacific Railway Company. A judgment for defendant was affirmed on appeal by the Kansas City court of appeals, which certified the case to the supreme court. Reversed.
Reversed and Remanded.
""Lathrop Morrow & Fox for appellant.
(1) The court erred in ruling as a matter of law, that the mere act of bringing an attachment suit was a conclusive election between inconsistent remedies and was a complete bar to this action. ""Anchor Milling Co. v. Walsh, 20 Mo.App 107; ""Lapp v. Ryan, 23 Mo.App. 436; ""Foundry Co. v. Hersee, 33 Hun, 176; ""Butler v. Hildreth, 5 Met. 49; ""Mining Co. v. Mining Co., 7 F. 424; ""Bunch v. Grave, 12 N.E. 517; Bigelow on Estoppel [2 Ed.], p. 503; ""Dillon v. Parker, 1 Swan's Chancery, 359 ""Spread v. Morgan, 11 H. of L. Cas. 588; ""Bank v. Beale, 34 N.Y. 473; ""Kennedy v. Thorpe, 51 N.Y. 176; ""Rodermund v. Clark, 46 N.Y. 354; ""Smith v. Gray, 14 Gray, 532; Herman on Estoppel and Res Adjudicata, secs. 1028, 1030, 1038. (2) The case of ""Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558, is decisive of this case.
""Elijah Robinson and ""Jos. S. Laurie for respondent.
(1) Plaintiff had the option to ratify or rescind the sale in question; and having elected to ratify, plaintiff is precluded from maintaining a subsequent action based upon a rescission of such sale. Benjamin on Sales [6 Ed.], secs. 33, 442; ""Pence v. Langdon, 99 U.S. 578; ""Crossman v. Rubber Co., 127 N.Y. 34; ""Crook v. Bank, 52 N.W. 1131; ""O'Donald v. Constant, 82 Ind. 212; ""Connihan v. Thompson, 111 Mass. 270; ""Lehman, Durr & Co. v. Van Winkle & Co., 92 Ala. 443; ""Terry v. Munger, 121 N.Y. 161; ""Conrow v. Little, 115 N.Y. 387; ""Bach v. Tuch, 126 N.Y. 54; ""Thompson v. Fuller, 16 N.Y.S. 486; ""Fowler v. Savings Bank, 113 N.Y. 450; ""Foundry Co. v. Hersee, 103 N.Y. 25; ""Moller v. Luska, 87 N.Y. 166; ""Nield v. Burton, 49 Mich. 53; ""Thompson v. Howard, 31 Mich. 304; ""Arnold v. Hagerman, 45 N.J.Eq. 186; ""Carter v. Smith, 23 Wis. 497; ""Wheeler v. Dunn, 13 Col. 428; ""McLean v. Clapp, 141 U.S. 429; ""Nanson v. Jacob, 93 Mo. 331; " ""Phillips v. Batchelder, 47 Mo.App. 52.
This is an action of replevin for three car loads of wheat. On a trial before a jury, in the circuit court of Jackson county, there was a demurrer interposed by defendant to the evidence which was sustained, final judgment rendered for defendant, against plaintiff, for the value of the wheat at the time of the trial which was fixed at $ 1,237.34 and $ 92.80 for damages for its wrongful taking and detention. From the judgment plaintiff appealed to the Kansas City court of appeals, where the judgment was affirmed but that court certified the cause to this court because of the opinion of that court being in conflict with the opinion of the St. Louis court of appeals in Anchor Milling Co v. Walsh, 20 Mo.App. 107, and Lapp v. Ryan, 23 Mo.App. 436.
On September 1, 1890, the Imboden Commission Company was a corporation engaged in the grain business at Kansas City, Missouri. In the latter part of August of that year the plaintiff sold and delivered to the Imboden Company a number of cars of wheat, among which were included the three cars here in controversy, which were then in the freight yard of the defendant company at that city. The sale was for cash on delivery. According to the custom which prevailed among grain dealers in Kansas City, the plaintiff furnished to the Imboden Company elevator receipts, certificates of weight, inspection certificate as to grade, invoices and bills of lading, the bill of lading being issued by the defendant company. Immediately upon the receipt of said bill of lading, Imboden surrendered it to the defendant company and obtained from said defendant company in lieu thereof another bill of lading for said wheat whereby the wheat was to be delivered upon the order of the Imboden Company to C. H. Albers & Company at St. Louis.
As soon as Imboden received the bill of lading, he took it to the Central Bank in Kansas City, and indorsed and delivered it to said bank with a draft thereto attached upon Albers & Company for $ 1,383.62, which was signed by the Imboden Company, and made payable to said bank. During the afternoon of the same day the Imboden Commission Company sent its check drawn on the Central Bank for $ 1,374.82, the contract price for the wheat to the Johnson-Brinkman Commission Company. The Imboden Company kept its account with the Central Bank, and on September 1, its account was overdrawn several thousand dollars.
In the afternoon of September 1, plaintiff, becoming apprehensive that the check it had received from the Imboden Commission Company was likely to be dishonored, Johnson, in company with Imboden, went to the Central Bank, presented the check and demanded its payment or a surrender of the Albers draft and bill of lading, but the bank declined to do either one. Johnson and Imboden then went to the latter's office, and at Johnson's request, Imboden turned over to him for the Johnson-Brinkman Commission Company, all its office furniture to protect it on account of the sale of its wheat, Johnson taking possession of the office and putting a notice on the door. They then went to the telegraph office, and, at Johnson's request, Imboden telegraphed Albers & Company to pay no more drafts. Johnson also immediately thereafter notified the superintendent of defendant's freight yard at Kansas City to hold the wheat until further orders from the Johnson-Brinkman Commission Company.
During the same evening Johnson went to the office of his attorneys, and, after a short conference with them, sued out an attachment in the name of the Johnson-Brinkman Commission Company as plaintiff and against the Imboden Commission Company as defendant. The petition alleged the sale and delivery of the wheat, and the affidavit for attachment averred that the sale was for cash on delivery, and that the Imboden Commission Company had failed to pay for the same. A writ of attachment was then issued by the proper officer, and the wheat seized by the sheriff.
On September 9, 1890, plaintiff dismissed the attachment suit, and afterwards, on the same day, began the present action to recover possession of said wheat, and the same was delivered to it in pursuance of an order of delivery issued herein.
On September 1, the Central Bank sent the bill of lading and draft upon Albers & Company to its correspondent in St. Louis for collection. On the following day it was presented for payment; but Albers, having in the meantime been notified by Imboden to pay no more drafts, declined to pay it at that time, but subsequently paid it at the request of the Central Bank. This was after the cashier of the Central Bank had gone to St. Louis and assured Albers that Imboden had no interest in the wheat; that the bank was the owner thereof, and that he, Albers, should receive the wheat if paid for. It was after this assurance, and relying thereupon, that Albers, without any knowledge, as claimed by him, of the claim of Johnson-Brinkman Commission Company, paid the draft.
Plaintiff's first contention is that the court erred in ruling, as a matter of law, that the mere act of plaintiff in bringing an attachment suit against the Imboden Commission Company and attaching the wheat as its property, and subsequently dismissing it before final judgment, and the commencement of this action, was a conclusive election between inconsistent remedies and a complete bar to this action.
Upon this question there is a direct conflict in the opinion rendered in the case by the Kansas City court of appeals, 52 Mo.App. 407, and the decisions of the St. Louis court of appeals, in Anchor Milling Co. v. Walsh, 20 Mo.App. 107, and Lapp v. Ryan, 23 Mo.App. 436. It was held by the Kansas City court of appeals in this case, that, as the plaintiff had an election between inconsistent remedies, as where one action is founded on an affirmance of a voidable sale or contract, any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties once for all; and that the institution of the attachment suit by plaintiff against the Imboden Commission Company was such a decisive act, and a bar to this suit, while in the Anchor Milling Company case it was held that the levy of an attachment upon chattels as the defendant's property does not prevent the plaintiff from subsequently seizing the same property in replevin as his own. This case was followed and approved by the same court in the Lapp case. Both of the cases last named were followed and approved by this court in Johnson-Brinkman Company v. Central Bank, 116 Mo. 558, 22 S.W. 813.
But it is insisted by counsel for defendant that the three cases last named are not in accord with the great weight of authority, which is, as he claims, as announced in this case 52 Mo. App., supra, and should be modified or overruled. It is well settled law that where a party has the right to pursue one of two inconsistent remedies, and he makes his election, and...
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