Whipple v. Stephens
| Decision Date | 25 January 1904 |
| Citation | 25 R.I. 563,57 A. 375 |
| Parties | WHIPPLE v. STEPHENS. |
| Court | Rhode Island Supreme Court |
Case for trover by William L. Whipple against Samuel H. Stephens. On petition of defendant for a new trial. Denied.
Argued before STINESS, C. J., and DOUGLAS and BLODGETT, JJ.
F. P. Owen, for plaintiff. Henry J. Dubois, for defendant.
STINESS, C. J. A controlling question arises in this case, which we will first consider. The plaintiff sues in trover for goods leased to one Graham, who had turned them over to the defendant Before beginning this action the plaintiff sued this defendant in assumpsit, which action was dismissed for failure of plaintiff to file a bill of particulars. The question is whether this was such an election of remedy as to amount to a waiver of the tort, and so to preclude the plaintiff from maintaining this action. It is a well-settled rule that where a party has two causes of action inconsistent with each other, an election to proceed upon either is a waiver of the other. For example, if one has the right to affirm or to repudiate a transaction, he cannot, after taking one of these positions, be heard to maintain the opposite. As applied to this case, the argument is that the plaintiff had the right to waive the tort and to sue in assumpsit for the value of the goods; that having done this, he cannot now sue in trover. The test for the application of this rule is whether the plaintiff had the two forms of remedy. If he did not, there was no chance for an election. A party cannot choose a remedy which he does not have. Thus an action brought in a court without jurisdiction, or before cause of action accrued, or by mistaken remedy, has been held not to constitute a waiver. 7 Ency. Pl. & Pr. 365, 366, and cases cited. We come, then, to the question whether the plaintiff had two remedies—one in trover for a conversion, and one in assumpsit on a waiver of the tort. When property has been converted into money, or money's worth, there is no question that either trover or assumpsit will lie. There is a difference of opinion as to whether assumpsit will lie when it has not been converted into money. The larger number of states hold that it will not He, and other states—nearly as many—hold that it will lie simply on the conversion, without regard to money received for it. See cases cited in 7 Ency. Pl & Pr, 369, 370, and 4 Cyc. Law & Pro. 332, 334, notes 68, 69. The question was long ago settled in this state in Wilder v. Aldrich, 2 R. I. 518,...
To continue reading
Request your trial
-
City of Casper v. Joyce
...v. First National Bank (Wis.) 52 N.W. 1131. Fowler v. Bank, 113 N.Y. 450, 21 N.E. 172. Homer v. McCormick (Kan.) 56 P. 1124. Whipple v. Stephens (R. I.) 57 A. 375. Sunderlin v. Warner (Ida.) 246 P. 1. Jones First National Bank (Nebr.) 90 N.W. 912. In re Kenyon, 156 F. 863. Enterline v. Andr......
-
Kansas City v. Rathford
... ... 990; White v. McCoy Land Co., ... 101 S.W.2d 763; 28 C.J.S., p. 1076, sec. 9; Welsh v ... Corder, 295 Mo.App. 41, 68 S.W. 580; Whipple v ... Stephens, 25 R.I. 563, 57 A. 375. (2) Plaintiff's ... petition is pitched squarely and unmistakably upon the ground ... of fraud and is a ... ...
-
Holbrook v. J. J. Quinlan & Co.
...sought to enforce, and the pursuit of a remedy which does not exist is no bar. Priest v. Foster, 69 Vt. 417, 38 Atl. 78; Whipple v. Stephens, 25 R. I. 563, 57 Atl. 375; Bunch v. Grave, 111 Ind. 351, 12 N. E. 514; Agar v. Winslow, 123 Cal. 587, 56 Pac. 422, 69 Am. St. Rep. 84; Zimmerman v. R......
-
Henderson Tire & Rubber Co. v. Gregory
...61 N. H. 115; Columbia Trust Co. v. Norske Co., 100 Misc. Rep. 550, 166 N. Y. S. 915; Henry v. Herrington, supra; Whipple v. Stephens, 25 R. I. 563, 57 A. 375). The doctrine stated in its simplest form means that, if a party has two inconsistent existing remedies on his cause of action and ......