W. W. Bierce Ltd. v. Hutchins

• Decision Date: 29 April 1905
• Citation: 16 Haw. 717
• Parties: W. W. BIERCE LTD., v. C. J. HUTCHINS, TRUSTEE.
• Court: Hawaii Supreme Court

16 Haw. 717

W. W. BIERCE LTD.,

v.C. J. HUTCHINS, TRUSTEE.

Supreme Court of the Territory of Hawai‘i.

Argued MAR. 13 AND APR. 18, 1905.

Decided APR. 29, 1905.

OPINION TEXT STARTS HEREPETITION FOR REHEARING.

Syllabus by the Court

Election is a choice between inconsistent remedial rights. It may be manifested by the institution of an action to enforce one of the rights, whether the action is carried to completion or not and whether, if it should be carried to completion, it would be successful or not. It is of rights rather than of remedies, the attempt to enforce a particular remedy being the manifestation of the choice of one of the rights. But there cannot be an election unless there are two or more rights to elect between, and so the bringing of an action to enforce a supposed but non-existing right does not preclude the bringing of an action to enforce an inconsistent right. Likewise, even if there are two or more inconsistent rights and an action is brought to enforce one, there is no election, if such action is brought in ignorance of the facts; but if the action is brought with knowledge of the facts, there is an election, even though there is no actual intent to abandon the other inconsistent right or rights. Other actions may be brought to enforce the same or other consistent rights but not to enforce other inconsistent rights. And, of course, there is no election when inconsistent rights are proceeded on at the same time. An election once made is irrevocable. It differs from the various classes of estoppel proper and rests on the principle that one cannot occupy inconsistent positions.

In the case of a conditional sale, the vendor may waive the condition and treat the sale as absolute, as, by instituting a materialman's lien suit based on the theory that the title has passed to the vendee, but if he so elects with knowledge of the facts he cannot afterwards treat the sale as conditional, as, by bringing replevin based on the theory that the property is still in him. Such is the result, even though the lien suit could not have been carried to judgment with success, for in such case the election is between the existing inconsistent rights to proceed on the theory that the title has passed and to proceed on the theory that is has not passed; it is not merely between a supposed but non-existing remedy by lien suit and an existing remedy by replevin.

The bringing of the lien suit bars the action of replevin even though only a portion of the items covered by the contract and for which the lien suit was brought are lienable.

Kinney, McClanahan & Cooper, S. H. Derby and C. A. Galbraith for plaintiff.

J. W. Cathcart and Castle & Withington for defendant.

FREAR, C.J., HARTWELL AND WILDER, JJ.

OPINION OF THE COURT BY FREAR, C.J.

This is a petition for a rehearing of the case decided ante, page 418. The action is replevin for rails, cars, etc., claimed to have been sold by the plaintiff on the condition that title should remain in it until payment. The court held that even if title were to remain in the plaintiff until payment still the plaintiff could not maintain replevin, which is based on the theory that the title was in it, for the reason that it had previously elected an inconsistent right by bringing an action for the price and to enforce a materialman's lien, which was based on the theory that the title had passed to the vendee.

For the purposes of the original decision it was assumed that the contract was one of conditional sale or, perhaps more accurately speaking, that it was an executory contract to sell upon condition precedent. We will proceed upon that assumption for the purposes of the present decision also, although it may not be out of place to state that in the opinion of a majority of the court the sale was absolute and therefore replevin could not be maintained in any event.

The petition sets forth seven grounds, all of which were either considered by the court or not raised by counsel at the original hearing. They may be summed up as follows: (1) That the court should have decided, but did not do so, whether the plaintiff is entitled to a new trial as regards the items which, by reason of not having become attached to the realty, were not subject to a materialman's lien, and (2) that the court overlooked or did not give due consideration to certain points bearing upon the question whether the institution of the materialman's lien suit amounted to an election.

As to the first of these grounds, the court merely reversed the judgment of the trial court and remanded the case for such further proceedings as might be proper, not knowing whether the plaintiff would be able to introduce further evidence bearing on the question of election which would make it worth while to have a new trial. Apparently the plaintiff knows of no other evidence that it can introduce upon that question but now asks the court to decide whether the election manifested by the institution of the lien suit extended to all the items covered by the contract or only to the lienable items. It was unnecessary to pass upon this as a primary question in the original opinion but it was passed upon incidentally by inference from the reasoning in that opinion. It goes without saying that the plaintiff could not elect to treat the sale as absolute as to part of the property covered and conditional as to the remainder. The lien suit was in fact instituted as to all the items.

As to the second ground, it will be unnecessary to discuss in detail all the points raised by counsel, for to do that would mean largely a repetition of what was said with more or less fulness in the former opinion upon the doctrine of election and its application to the facts of this case. It will be sufficient to refer to a single point in regard to which counsel for the plaintiff seems not fully to understand the former opinion. As shown in that opinion the election is not so much between remedies as between rights. The election in this case was between the right of the plaintiff to proceed upon the theory that the sale was conditional and that the title remained in it until payment, and the right to proceed on the theory that the sale was absolute and that the title had passed to the vendee, the plaintiff having a choice between such rights if the contract was one of conditional sale. The election was between the right to the property on the theory of conditional sale and the right to the purchase price on the theory of absolute sale. It was not, as contended by the plaintiff, between a remedy by lien suit and a remedy by replevin. An election is an unequivocally manifested choice between two or more inconsistent rights. The pursuit of a particular remedy is the manifestation of the choice between the rights. If two rights exist the choice may be manifested by the institution of an action, whether the action is or could be carried to completion with success or not. If the action is discontinued or fails of success the plaintiff may pursue other consistent remedies, that is, other remedies based on the same or a consistent right, but not other inconsistent remedies, that is, remedies based on an inconsistent right. If there is in fact only one right the institution of any number of actions on supposed but nonexisting other inconsistent rights will not amount to an election or prevent the institution afterwards of an action upon the only right that does exist. Likewise, if there are in fact two inconsistent rights and an action is brought on one under a mistake of fact and discontinued upon obtaining knowledge of the facts, there will be no election and the other inconsistent right may afterwards be proceeded upon, provided there are no elements of an estoppel in pais, as, for instance, prejudice to the other side. In the present case the plaintiff might have elected to rely on the right of property in itself under a conditional sale by bringing any one of several actions, as, for instance, replevin, trespass, detinue, etc., or it might have manifested its election to proceed on the theory of an absolute sale and property in the vendee by bringing a lien suit or an action of assumpsit accompanied by attachment, etc., or it might have brought an action which would be consistent with either right and not amount to an election, as, for instance, a simple action of assumpsit for the purchase price. Under some circumstances a mere action of assumpsit would show an election, but not in this case because of the special provisions of the contract. See former opinion and cases there cited. Also Typograph Co. v. Macgurn, 119 Mich. 533. These principles are set forth more fully in the former opinion and cases there cited, and also in 15 Cyc. 251 et seq., and numerous recent cases there cited, which volume has been received since the former decision was rendered. The following quotations are from this volume:

“An election of remedies is the choice...