Welsh v. Carder
| Decision Date | 07 April 1902 |
| Citation | 68 S.W. 580,95 Mo.App. 41 |
| Parties | THOMAS N. WELSH, Appellant, v. JAMES N. CARDER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Schuyler Circuit Court.--Hon. Nat M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Higbee & Mills for appellant.
(1) The court erred in admitting in evidence the statements filed with justice Guffey and the judgment of said justice in the case of Thomas N. Welsh v. J. M. Warnick for the conversion of the note read in evidence. It was agreed at the time these were offered in evidence the judgment remains wholly unsatisfied. The great weight of the modern cases in this country as well as in England is to the effect that a judgment in trover without satisfaction does not vest title to the property in the defendant. The judgment is merely an assessment of the value of the property; title passes only on payment of the judgment. Lovejoy v. Murry, 3 Wall 1, by MILLER, J., reviewing the cases. 26 Am. and Eng. Ency. Law (1 Ed.), 815, 816, and cases cited in note 1; Page v Freeman, 19 Mo. 421; Mitchell v. Shaw, 53 Mo.App. 652; Laughlin v. Barnes, 76 Mo.App. 258; Tollman Co. v. Waite, 119 Mich. 341; s. c., 78 N.W 124; Haas v. Sackett, 41 N.W. 237; Smith v. So Rill, 54 S.W. 38; Clark v. Cullen, 44 S.W. 204; Cooley on Torts (1 Ed.), 458 (2 Ed.), 537; Miller v Hide, 161 Mass. 472; s. c., 25 L. R. A. 42, where election of remedies is discussed; Thayer v. Manley, 73 N.Y. 305.
Smoot, Fogle & Eason for respondent.
(1) It is well-settled law that when Welsh had the right to pursue one of inconsistent remedies and he made his election and instituted his suit, and prosecuted it to final judgment, he can not thereafter pursue another one of such remedies. Nanson v. Jacob, 93 Mo. 331; Estes v. Reynolds, 75 Mo. 563; Stoller v. Coates, 88 Mo. 514; Johnson-Brinkman Com. Co. v. Railroad, 126 Mo. 344; Enterprise Soap Works v. Sayers, 51 Mo.App. 310; Bowles v. Abrahams, 65 Mo.App. 13; Trimble v. Banks, 71 Mo.App. 485; Lapp v. Ryan, 23 Mo.App. 436; Laughlin v. B. & P., 76 Mo.App. 264; Bradley v. Bingham, 149 Mass. 141; Farewell v. Myers, 59 Mich. 179; Ewing v. Cook, 85 Tenn. 332; Bank v. Beal, 34 N.Y. 473; Field v. Bland, 81 N.Y. 239; 46 Hum. 129; 23 Wis. 497; 13 Col. 428; 36 Minn. 1; 113 N.Y. 450; 82 Ind. 212; Wiggins Ferry Co. v. Railroad, 142 U.S. 396. (2) After a suit for conversion of securities and a recovery in such action, the pledger can not maintain an action to recover possession of the securities. He has made an election of his remedies and is bound by such election. Jones on Pledges and Col. Sec. (2 Ed.), p. 662; Campbell v. Parker, 9 N.Y. 322; Lucky v. Gannon, 37 How. Pr. (N. Y.) 134; Decker v. Martin, 12 N.Y. 313; 25 Md. 269. (3) When Warnick sold the note pledged to him by Welsh to secure the $ 25 debt, Welsh had four remedies. His election and recovery in one is final. Gilchrist v. Bale, 34 Am. Dec. 469.
--This is an action of replevin for the possession of certain personal property which the plaintiff claims as mortgagee by virtue of a certain mortgage executed by J. S. and S. T. Payne on the fourteenth day of January, 1901, and duly recorded. The mortgage was given to secure two promissory notes for $ 75 each, one due in six and the other due in twelve months, with a provision for attorney's fees. The contest arose over the payment of the note due in six months. The defendant set up two defenses against the plaintiff's right to recover. On the first, the court found against him; and as no complaint is made to the action of the court in that respect, we will confine our consideration to the action of the court on defendant's second defense, which was in his favor. Said defense is as follows:
"That defendant has since been informed and avers the fact to be that plaintiff had deposited said note with one J. M. Warnick, this being the first note secured by said chattel mortgage; that said note was deposited as collateral security; that said Warnick afterwards sold and transferred said note to Paynes, the payors therein; that after said Warnick had assigned said note, plaintiff instituted a suit before one Jesse Guffey, a justice of the peace of Putnam county, claiming that said Warnick had converted said note by transferring it to said Paynes and claimed judgment for balance due on said note and judgment was duly rendered against said Warnick for $ 50 and costs, being balance due on said note," etc.
Defendant claimed that by so electing to sue said Warnick, plaintiff elected to affirm the conversion of said note, and that he was thereby estopped from recovery against defendant in this action. It appears from the statement of the parties that Warnick had sold plaintiff a cow for $ 25, and that plaintiff had transferred to Warnick the two notes in controversy as collateral security for payment of said sum; that afterwards the Paynes paid one of said notes to plaintiff, and that at the time judgment was rendered for plaintiff in said cause in the justice's court, Warnick got credit for the $ 25, the price of the cow, and the judgment was for the balance of the note in the sum of $ 50, which has not been paid. The defendant purchased the mortgaged property in dispute from the Paynes.
The plaintiff appealed from the action of the court in its finding against him on said second defense. The ground upon which the trial court founded its action was that the plaintiff, by electing as between one of two inconsistent remedies, is estopped from asserting the other. Or, in other words, by suing Warnick for the conversion, he affirmed the transaction as to the sale of said notes and thereby lost his remedy of replevin for the goods. The appellant contends that in pursuing his remedy against Warnick he is not estopped from recovery as he has not collected his said judgment; and in support of his said contention we are cited to the case of Lovejoy v. Murray, 70 U.S. 1, 3 Wall. (U.S.S.C.) 1, 18 L.Ed. 129, and to Johnson-Brinkman Com. Co. v. Railroad, 126 Mo. 344, 28 S.W. 870. The first case has no application whatever. In that case the plaintiff was seeking to recover from one joint trespasser after having pursued his remedy against another one of them, without having been able to collect his judgment. The court therein announced the familiar principle that the plaintiff had the right to pursue his remedy against any one or all of the trespassers until he was compensated for his damages--the remedy being the same and the joint trespassers alike being liable for the wrong. The second case had been certified to the Supreme Court from this court for the reason that it was in conflict with two decisions of the St. Louis Court of Appeals, viz.: Anchor Milling Co. v. Walsh, 20 Mo.App. 107, and Lapp v. Ryan, 23 Mo.App. 436. This court in said case having held as follows (52 Mo.App. 407):
"If plaintiff has an election between inconsistent remedies, as where one...
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