Whiteside v. Brawley
| Decision Date | 03 July 1890 |
| Citation | 152 Mass. 133,24 N.E. 1088 |
| Parties | WHITESIDE v. BRAWLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
July 3 1890
HEADNOTES
E.L Barney, for plaintiff.
Thomas F. Desmond, for defendant.
This is an action with two counts,--one for fraudulent representations in an exchange of horses; the other for a conversion of the horse, and $25 given by the plaintiff as part of the bargain. There was evidence that the plaintiff knew of the defects concerning which the representations were made, but there was also evidence that he relied upon the representations; and, so far as appears, the jury would have been warranted in finding that, notwithstanding what the plaintiff saw and heard, he reasonably surrendered his judgment to Brawley, the defendant's intestate. Subsequently the plaintiff went to Brawley with the horse in question, said he would not have her anyhow, and after some talk exchanged it for another horse, which, according to the plaintiff's evidence, Brawley represented to be all sound, and which was not so, in fact, as Brawley knew. The plaintiff returned this horse, and, failing to make any further bargain, brought this action.
At the trial the judge declined to rule that either the facts or the pleadings necessarily amounted to an election to affirm the sale. He also declined to require the plaintiff to elect on which count he would go to the jury; but he directed the jury, if their verdict was for the plaintiff, to return upon which count it was found. The jury found for the plaintiff upon the second count.
With regard to the facts, no doubt, a possible conclusion from the evidence would be that, when the plaintiff took the second horse, he unconditionally affirmed the original transaction as of course he would have done had he sold the first horse to a third person after knowledge of the fraud. But, as he was dealing with the original seller, it was equally possible to infer that the affirmance of the first exchange was only one of the incidents of a second exchange, and that if the second exchange was also brought about by fraud, and was rescinded on that ground, the affirmance of the first sale fell with it. Indeed, it was possible even to find that Brawley assented to the rescission, and delivered the second horse, technically, upon the original consideration.
Next, as to the pleadings. Of course, an action for the breach of a contract goes on the footing of affirming the contract relied on, and therefore is inconsistent with an action going on the footing of recission. The same principle applies to an action of tort for deceit in a sale; for, if the sale is rescinded, then the fraud has had no consequences, and has caused no damage. Kimball v. Cunningham, 4 Mass. 502, 505; Mallory v. Leach, 35 Vt. 156, 171; Bowen v. Mandeville, 95 N.Y. 237, 240; Heastings v. McGee, 66 Pa.St. 384, 387. Of course, too, when a person having a choice of inconsistent remedies has once elected one of them, he cannot afterwards seek the other. Butler v. Hildreth, 5 Metc 49, 50; Connihan v. Thompson, 111 Mass. 270, 272. See Metcalf v. Williams, 144 Mass. 452, 454, 11 N.E. 700. But, when a plaintiff joins two independent counts, neither can be taken to overrule the other, although in fact one of them proceeds upon an affirmance, and the other on a disaffirmance, of the same bargain. As the plaintiff takes both positions, he cannot be said to have elected.
In Clapp v. Campbell, 124 Mass. 50, it was intimated that the defendant had a right to require the plaintiff at the trial to elect which count he would rely upon. In that case the counts were, respectively, in trover and for money had and received; and it was assumed that the plaintiff's election to affirm or to repudiate the sale constituting the conversion remained open at the time of the trial. We need not...
To continue reading
Request your trial