Sullivan v. Ross' Estate

ON rehearing.

Moore, J.

The questions involved in this case up to February, 1894, are fully stated in Sullivan v. Ross’ Estate, 98 Mich. 570 . A reference to that case will make it unnecessary to repeat what is there stated. The case was here again, and is reported at page 311, ante. A reference thereto as to the history of the case subsequent to the events stated in 98 Mich. 570 , will avoid the necessity of repeating many of the details of the case here. It was claimed on the part of the appellant that the case was wrongly decided, and a rehearing was ordered.

In the former opinion, ante, it was held — First, that the question involved in the case was res judicataj second, that claimant in his former suit chose his remedy, and the law does not now permit him to assert another. Upon the rehearing, careful and able oral arguments were made, and additional briefs were filed. In deciding the case, it may be well to go more into detail as to the history of the litigation prior to the advent of the case in this court, and to consider what was decided in 98 Mich.- 570. It is well to remember at the outset that the case originated in the probate court, where claimant presented sev *316 eral items which he sought to have allowed in his favor against the defendant estate. The principal item, and the one about which the principal controversy has arisen, was a claim for 9,000,000 feet of lumber, which he alleged was sold by an oral bargain to Mr. Ross, through one Connolly, his agent, for the sum of $81,000. He claimed there was due him from the estate, stated in round numbers, the sum of $70,000. The defendant admitted that Ross & Co. had received upwards of 7,000,000 feet of lumber belonging to plaintiff, but claimed that they made payments and advances to plaintiff to such an extent that not only they did not owe plaintiff anything, but plaintiff owed them upwards of $23,000. The éstate denied that the lumber was sold by oral contract, and claimed that Ross & Co. received the lumber and disposed of it according to the terms of two written contracts made in the fall of 1883, supplemented by a written contract made in June, 1884. The claims of the parties were submitted by the trial judge to a jury, who returned a verdict in favor of the claimant, and in doing so must have found the oral contract to exist.

The opinion in 98 Mich, indicates clearly that the court were of the opinion that the written evidence made by the plaintiff himself was inconsistent with the existence of the oral contract, and was consistent only with the existence of the written contract. The judgment was reversed, and a new trial ordered. Up to this point it is clearly evident that the jury passed upon the relation of the parties upon the theory that the oral contract existed, and did not undertake to decide in whose favor the balance should be, or for what amount, upon the theory that the written contract was to control. It is also evident, as to this principal item, that it was presented to the probate court for a definite quantity of lumber, at a stated price, according to the terms of the alleged oral contract, and was not such an item as must be presented if it is to represent a claim for the lumber upon the theory that the transaction is to be controlled by the written con *317 tract. After this court decided that the "written contract must control, and a new trial was ordered, claimant attempted to amend his claim so as to bring it within the contract this court said must control. The circuit judge declined to permit the amendment, for the reasons stated in the opinion, ante, and, upon an application for a mandamus, this court declined to interfere. No written opinion was filed, so the reasons for this action of the court cannot be determined here. It might well be said that the claim presented before the probate court and the issue there made was not the same as the one which would be presented if the amendment was allowed, and for that reason the application for a writ of mandamus was refused. I do not think it can be' said that, because of the mandamus proceeding, the question is res judicata. Can it be said, because of the proceedings prior to the decision in 98 Mich., that the question is res judicata ?

The plaintiff claimed a balance due growing out of the oral contract. The defendant claimed that the written contract should control, and that a balance was due it. The jury found in favor of the plaintiff. This court said they did wrong, because the written contract must control, and ordered a new trial. The plaintiff then sought to so frame the proceedings as to permit the case .to be heard upon the theory that the written contract should control. He has not so far been able to do it. It is very clear that a dispute exists between the parties as to how much is due, and from whom, if the written contract is to control. It is equally clear that that question has never been passed upon by the court. The attitude of the plaintiff is:

“Large dealings existed between us. I claimed the oral contract should control. The court says I am wrong in the claim, and the written contract must control. Conceding it must control, defendant has had a large quantity of my lumber, for which it owes me a large sum of money; and as the defendant disputes my contention, and claims I owe it, the question should be submitted to the jury to decide.”

*318 The decision in 98 Mich, decides which contract shall control, but I do not think either it or the case as tried in the circuit court has decided what the judgment should be upon the basis of the written contract. The pleadings were not in such a condition that the issue thus stated could be tried. There has been no trial upon the merits of the controversy between these parties. The plaintiff sought to recover upon an oral contract. He had no right of action upon that contract, because the court has said that no such contract existed. Can it be said that defendant shall not be required to account for the proceeds of seven or eight millions of feet of lumber, which it admits it had, because plaintiff claims that the transaction was evidenced by an oral contract, when the court finds that no such contract existed, but that a written one did ? I think the" situation is stated in McLaughlin v. Austin, 104 Mich. 489 :

“No rule is better settled than the proposition that one having the choice of two inconsistent remedies is bound by an election, and that suit brought upon one precludes a subsequent resort to the other claim. Thus, one may waive a tort by bringing an action in assumpsit, or may lose his right to bring assumpsit by commencing an action for the wrong committed. One may sometimes rescind a contract, and assert title to property that he has parted with, or he may affirm the contract, but he cannot do both. Having elected by bringing an action upon one theory, he has no right afterwards to sue upon the other. Thompson v. Howard, 31 Mich. 312 , and cases cited; Brown v. Littlefield, 11 Wend. 467 , 1 Wend. 398 ; Morris v. Rexford, 18 N. Y. 557 ; M'Elroy v. Mancius, 13 Johns. 121 ; Sanger v. Wood, 3 Johns. Ch. 416 . This rule is not inconsistent with the practice of bringing -a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had. Morris v. Robinson, 3 Barn. & C. 196; Peters v. Ballistier, 3 Pick. 495 ; Butler v. Hildreth, 5 Metc. (Mass.) 49.”

*319 See Fifield v. Edwards, 39 Mich. 264 ; McKinney v. Curtiss, 60 Mich. 611 ; Farwell v. Myers, 64 Mich. 234 ; 2 Black, Judgm. § 715; Chaddock v. Tabor, (Mich.) 72 N. W. 1093 .

It is said in the earlier opinion, ante, that claimant in the former suit chose his remedy, and the law does not now permit him to assert another. It will appear from the authorities already cited that if, in choosing his remedy, he has made a mistake, and for that reason failed, he is not cut off from pursuing the right remedy. And I think that is just what appears here. It is said that Mr. Sullivan has deceived the court, that he attempted to assert a claim which did not exist, and for that reason, upon grounds of public policy, he ought not to be heard in court again.. The testimony was conflicting in relation to the circumstances surrounding the execution of the written contract, but the court has already said that written admissions made by Mr. Sullivan indicate clearly that the written contract was to control the parties. The record shows that this contract could not for a time be found. Considerable time elapsed while these transactions were going on. We all know how fallible men are, and how prone they are to believe what it is to their interest to believe. But suppose it be conceded that Mr. Sullivan was untruthful, and knew he was, in giving his testimony; while that fact is to be condemned, and would affect his testimony in any subsequent trial, can it be said that he has no right to have this controversy settled by the courts? He says that there are a good many thousand dollars due him. If that is true, is it a sufficient reply to say, “Even if there is, you have attempted to deceive the court, and for that reason it will not listen to you, and the defendant may keep what it has ? ” It is more in accordance with my sense of justice to hold that a jury should be allowed to say upon the merits, with an issue framed according to the rulings of the court, which of these parties owes the other.

It is urged that the claim should not have been presented in probate court, but that the aid of a court of *320 equity should be invoked. Many cases are cited in support of this proposition, among others the case of Sullivan v. Ross’ Estate, 98 Mich. 570 . I think, however, this case is easily distinguishable from the cases cited. The transactions in this case were all completed during the lifetime of Mr. Ross. The lumber has all been sold, and a money judgment will satisfy all proper claims. Wheeler v. Arnold, 30 Mich. 304 . If Mr. Ross had lived, there would have been no difficulty in settling the entire controversy on the law side of the court. There is nothing in the law questions involved that cannot be taken care of upon the law side of the court. The plaintiff should have been allowed to go to the jury with his case.

The judgment is reversed, and a new trial ordered.

Montgomery, Hooker, and Long, JJ., concurred with Moore, J.