Frisch v. Wells , 200 Mass. 429 ( 1909 )

Braley, J.

Under the contract, title to the replevied chattels was not to pass to the vendee until the purchase price had been fully paid and a bill of sale given. But, after having paid a part by instalments, his failure to make other payments was a breach which entitled the vendor who had not broken the contract either to treat it as an agreement for goods sold and delivered and to sue at once for the price, or in tort for conversion, or in replevin for their specific recovery. Bailey v. Hervey, 135 Mass. 172. Brown v. Magorty, 156 Mass. 209. White v. Solomon, 164 Mass. 516, 518. Smith v. Aldrich, 180 Mass. 367, 369. If the first remedy was used it rested upon the theory, that after breach, at the election of the plaintiff, the title passed to the vendee, who received and retained the property. But if the second remedy was resorted to, the remedial right rested upon the assumption, that as the bill of sale had not been given, the title still remained in the plaintiff. Brown v. Magorty, 156 Mass. 209, 211. Cooper v. Cooper, 147 Mass. 370, 373. These remedial rights, although alternative, were therefore inconsistent, and while the plaintiff had his choice of either, he could not resort to them all. Snow v. Alley, 156 Mass. 193, 195. Nor is the case of Miller v. Hyde, 161 Mass. 472, on which the plaintiff relies, in conflict. A majority of the court there held that, without satisfaction, a judgment for the plaintiff in an action of tort for conversion did not vest in the defendant title to the chattels, and as the remedies were consistent, replevin for the horse could be maintained against his vendee. It must be presumed from the record, that, with knowledge of his legal rights and being in possession of the facts, the plaintiff chose to bring suit for the balance due and to arrest and hold the body of the debtor until he was discharged upon taking the oath prescribed by R. L. c. 168, § 40. The plaintiff failed to enter the writ. It is not, however, the judgment which may be obtained, but the commencement of a suit to enforce a coexisting inconsistent remedy in a court having jurisdiction, which constitutes the decisive act and makes the election binding. Butler v. Hildreth, 5 Met. 49. Connihan v. Thompson, 111 Mass. 270. Bailey v. Hervey, 135 Mass. 172. The answer was a general denial, which put in issue not only the plaintiff’s right to possession, but his title to the property. D'Arcy v. Steuer, 179 Mass. 40, 41. And, the plaintiff having once made an irrevocable election, the title was relinquished or waived, and the present action is absolutely barred. Bailey v. Hervey, 135 Mass. 172. Whitney v. Abbott, 191 Mass. 59.

The rulings at the trial were correct, and by the terms of the report judgment is to be entered for the defendant with damages in the sum of SI, and for a return of the goods. McNeal v. Leonard, 3 Allen, 268.

So ordered.