Farrar, Burt & Co. v. Powell , 71 Vt. 247 ( 1899 )

Taft, J.

The first point raised is that the bill is multifarious. A demurrer for multifariousness holds only when the orator claims several matters of different natures. When one general right is claimed by the bill, though the defendants have seperate and distinct rights, a demurrer will not hold. Lewis v. St. Albans I. & S. Works, 50 Vt. 477; Smith v. Scribner, 59 Vt. 96. There is but one general right claimed by the bill before us. That is, that the assignees shall account for the property which came into their hands by virtue of the assignment from the defendant Goodspeed. No one is made a party defendant unless it is alleged in the bill that he has been in some way connected with the fraudulent disposition of the property or, in some manner, with the proceedings in respect to it. The matters of the bill are not of different natures, and therefore the bill is not multifarious.

The assignment was made by Goodspeed to Powell, Robb and Lambert, in terms, under R. L. chap. 94. It is suggested that the chapter was repealed, by implication, by the passage of the law relating to voluntary insolvency, — No. 1, Acts 1876. If the assignment law was in force, the assignment was invalid as to the orators, if they so elected, the assignees being creditors of the assignors, but would have been valid if the orators had assented thereto. Merrill v. Englesby, 28 Vt. 150. If the law of assignments was repealed, in the manner claimed, the assignment was good as a common law one. See Mason v. Hidden, 6 Vt. 600, and Hall v. Denison, 17 Vt. 310. A common law assignment must be assented to in order to bind a creditor. The result is that if treated as either a statutory or a common law assignment, the bill cannot be maintained. The orators dissented, as shown by the fact that after the assignment by Goodspeed they brought a suit at law against him and attached the assigned property, and in that suit obtained judgment for the amount of their claim.

When the assignment was made, whether it was a common law or a statutory one, it was competent for the orators in the first place to have treated it as operative and valid, and claim their rights under it, or they could have disaffirmed the assignment, a contract made for their benefit. Bishop v. Catlin, 28 Vt. 71. They treated it as not binding upon them, and proceeded at once to attach the assigned property and hold it independent of the assignment, or any rights of the assignees to it. The orators could not do both. They could not at the same time treat the assignment as valid and invalid. Having chosen the latter course and attached the assigned property, or a large part of it, upon the ground that the assignment was illegal, they cannot now abandon that position, ratify the assignment and maintain this proceeding. It was not the bringing of the suit and obtaining judgment that determined their election. That, they had a right to do. Bank v. Deming, 17 Vt. 366. It was disaffirming the assignment by an attachment of the assigned property which barred them from maintaining the position they now assume. Having made an election they are bound by it, whatever the result of the attachment may have been. If a person has two rights that are inconsistent with each other, as when one action is founded on an affirmance, and the other on a disaffirmance, of a contract or sale of property, if he seeks one of the rights he is barred from taking a different position in seeking the other. White v. White, 68 Vt. 161.

The decree dismissing the bill was correct; the same is affirmed and cause remanded.