Zimmerman v. Robinson & Co.

Decision Date14 March 1905
CourtIowa Supreme Court
PartiesZIMMERMAN v. ROBINSON & CO.

OPINION TEXT STARTS HERE

Appeal from District Court, Franklin County; J. H. Richard, Judge.

The opinion states the case.

E. P. Andrews, for appellant.

John M. Hemingway, for appellee.

WEAVER, J.

In the year 1890, O. C. Zimmerman, the plaintiff's assignor, purchased a threshing machine from the defendant. The contract was in writing, and contained a warranty of the machine. The notes given by Zimmerman for the purchase price were transferred before maturity, and he has been compelled to pay them. It is claimed that the machine did not conform to the warranty, and the right of action based upon said alleged breach has been assigned to the plaintiff. In the year 1900 the plaintiff instituted her action at law alleging that the contract of purchase had been rescinded by Zimmerman on account of the alleged breach of warranty and demanding recovery for the amount paid in discharge of the notes given for the purchase price. Later, by an amendment to the petition, an additional count was stated, setting up an alleged breach of warranty and asking damages; but, being required by the court to elect upon which demand she would proceed to trial, plaintiff again amended her petition, restoring it, in substance, to its original form, basing her alleged right of recovery solely upon a rescission of the contract of purchase. Trial of the issue joined upon the petition resulted in a judgment for the plaintiff. On appeal to this court it was held that no rescission of the contract had been made, and the judgment was reversed, and the cause remanded for a new trial. Zimmerman v. Robinson, 118 Iowa, 117, 91 N. W. 918. Thereupon the plaintiff abandoned her claim of rescission, set up a cause of action based upon the alleged breach of warranty, and demanded a recovery of damages. The defendant admits the sale of the machine under a warranty contained in the written contract, but denies there was any breach of such warranty, alleges that Zimmerman failed to comply with the terms on which the warranty was made to depend, and further pleads that plaintiff, having formerly prosecuted her claim by suing upon an alleged rescission of the contract, must be held to have made an election of the remedy upon which she would rely, and is thereby precluded from maintaining an action for damages.

1. The principal question presented by the record turns upon plaintiff's alleged election of remedies. Let us first consider what is meant in law by “an election of remedies.” It not infrequently happens that for the redress of a given wrong or the enforcement of a given right, the law affords two or more remedies. Where these remedies are so inconsistent that the pursuit of one necessarily involves or implies the negation of the other, the party who deliberately and with full knowledge of the facts invokes one of such remedies is said to have made his election, and cannot thereafter have the benefit of the other. To the proper application of this rule at least three things are essential: (1) There must be in fact two or more concurrent remedies between which the party has the right to elect; (2) the remedies thus open to him must be inconsistent; and (3) he must, by actually bringing his action, or by some other decisive act, with knowledge of the facts, indicate his choice between these inconsistent remedies. It follows necessarily from this rule that, if the party has in fact only one remedy, but in the mistaken belief that he has another attempts to enforce it, the doctrine of election is inapplicable, for no choice was ever open to him. Where either of two remedies are available, there may be a tactical advantage to be gained by pursuing one, rather than the other; but in a legal sense no mistake is committed if either be chosen. Where but one remedy exists the unavailing effort to enforce another does not constitute an election or estoppel which prevents a resort to the proper action. This distinction is upheld by the authorities generally, and has often been reiterated by this court. In Elevator Co. v. R. R., 97 Iowa, 719, 66 N. W. 1059, the general subject is quite fully considered. There may be doubt whether the facts in that case called for an application of the rule as to the election of remedies, but the statement and discussion of the rule itself are in harmony with the views we here express. It is there said that a party is bound by his election “when he has a right to choose one of two modes of redress and the two are so inconsistent that the assertion of one involves the negation of the other”; and again, “where a man has an election between several inconsistent courses of action, he will be confined to that one he first adopts.” After reviewing the authorities, we prefaced the application of the doctrine of election of remedies to the controversy then before the court as follows: “It is clear, under the rule of the cases we have been considering, that, if the right to elect existed,” then the act of plaintiff amounted to election. With this as a foundation, the remainder of the majority opinion is devoted entirely to an attempt to demonstrate that plaintiffs did in fact have two concurrent remedies, to wit, the right of stoppage in transitu and the enforcement of their claim as a lien against the property for its purchase price, and the right to rescind the sale entirely and reclaim the property in specie. Having these two inconsistent remedies, it was held that the act of plaintiff in retaking possession by a writ of replevin amounted to a choice to rescind. We had occasion to again consider the same question in the recent case of Redhead Bros. v. Cattle Co. (Iowa) 102 N. W. 144, and stated the rule as follows: “An election exists only where two or more inconsistent remedies are open to a party, and he is at liberty to pursue any one of them. It cannot exist between consistent concurrent remedies, or between a rightful remedy and one which the party may mistakenly suppose to be applicable.” All the Iowa cases cited by counsel are in strict harmony with the rule here quoted. Klocow v. Patten, 93 Iowa, 432, 61 N. W. 926;Theusen v. Bryan, 113 Iowa, 496, 85 N. W. 802;Elliott v. Ins. Co., 109 Iowa, 39, 79 N. W. 452. Turning to other jurisdictions, we find a very general agreement to the rule which we have adopted. In Van Norman's Case, 43 N. W. 334, the Supreme Court of Minnesota, after stating the general rule as to election between two existing inconsistent...

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