Summary
In Holt Manufacturing Co. v. Ewing, supra, 109 Cal. 353, at page 356, the court further stated: "I think it clear that the plaintiff was bound by its election in presenting the claim.
Summary of this case from Smith v. Greenfield State BankOpinion
Department Two
Appeal from a judgment of the Superior Court of Sutter County, and from an order refusing a new trial. E. A. Davis, Judge.
COUNSEL:
The plaintiff had two remedies, either to take possession of the harvester, or to waive the condition in the sale and treat it as absolute, and to sue for the balance unpaid on the purchase price. (Parke etc. Co. v. White River etc. Co ., 101 Cal. 37; Wright v. Pierce, 4 Hun, 351; Bailey v. Hervey , 135 Mass. 174; Ormsby v. Dearborn , 116 Mass. 386.) The proof of a claim against an estate in bankruptcy for goods sold prevents an action of replevin for the goods. (Morris v. Rexford , 18 N.Y. 552.) One who replevies goods cannot claim the purchase price. (Goss v. Mather, 2 Lans. 283; Walsh v. Chesapeake Canal etc. Co ., 59 Md. 423; Fields v. Bland , 81 N.Y. 239.) The claim against the estate of a deceased person, presented, allowed, and filed, has the effect of a judgment. (Estate of Olvera , 70 Cal. 184; Walkerly v. Bacon , 85 Cal. 137; Estate of Hidden , 23 Cal. 363; Estate of Loshe , 62 Cal. 413; Estate of McKinley , 49 Cal. 152.)
W. H. Carlin, for Appellant.
Forbes & Dinsmore, for Respondent.
The plaintiff was entitled to the possession of the property at the commencement of the action by the terms of the contract. (Hegler v. Eddy , 53 Cal. 597.) There was no waiver or conclusive election of remedies, there being no proof that the plaintiff was cognizant of his rights or intended an election. (Wells v. Robinson , 13 Cal. 142.) Allowance of claims does not merge debts. (Louis v. Triscony , 58 Cal. 304.)
JUDGES: Haynes, C. Britt, C., and Belcher, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
HAYNES, Judge
Action in claim and delivery of personal property. On July 8, 1893, the Holt Manufacturing Co. entered into a contract with T. S. Ewing, under which the "improved link belt combined harvester No. 426" was delivered by respondent to said T. S. Ewing, for which said Ewing agreed to pay the sum of $ 1,650, and to secure the same executed two promissory notes, each for the sum of $ 825 -- the first to become due September 1, 1892, and the second September 1, 1893.
By said contract, which was denominated a lease, it was stipulated that "the Holt Manufacturing Co. do not part with their title to said harvester until said deferred payments, or notes, are fully paid; that time is of the essence of the agreement; that should the undersigned (T. S. Ewing) make default in any of the payments, then said the Holt Manufacturing Co. shall, at their option and without notice, terminate this agreement, and, with or without legal proceedings, take and retain said harvester wherever it may be situated, and all moneys paid by the undersigned prior to such default shall be compensation for the privilege of using said harvester prior to such default."
There was paid on said first promissory note on October 3, 1892, $ 500, and on January 11, 1893, $ 100. Said T. S. Ewing died intestate on March 29, 1893, and the defendant, Rosa V. Ewing, was, on the twenty-ninth day of April, 1893, duly appointed administratrix of his estate, and on May 18, 1893, letters of administration were duly issued to her. Afterward the plaintiff presented to said administratrix its claim upon said promissory notes for the balance of $ 249, then due upon the first note, and the amount to become due upon the second, of $ 884.50, in all $ 1133.50. This claim was duly verified on May 20, 1893, and was allowed by the administratrix May 26, 1893, and allowed and approved by the court on June 24, 1893; and this action to recover possession of the said property was commenced October 12, 1893. In the presentation of said claim to the administratrix the plaintiff set out a copy of said promissory notes, with the credits upon the first, but did not set out the contract or lease, or make any reference whatever thereto.
Upon this state of facts the defendant contended that the plaintiff waived its right under said contract to retake the property, and elected to treat the transaction as an absolute sale, and is therefore estopped from asserting ownership to the property, or any right to recover possession thereof in this action.
The cause was tried by the court, and findings and judgment went in favor of the plaintiff, and this appeal is by the defendant from said judgment and from an order denying her motion for a new trial.
The so-called lease was in fact a conditional sale, under the terms of which the seller had either one of two remedies for the violation of the contract by the purchaser. It might, upon the default of the purchaser in meeting the stipulated payments, or any of them, have retaken the property or recovered its possession in an action of claim and delivery; or, on the other hand, treated the sale as an absolute one, and brought its action upon the notes to recover [42 P. 436] the contract price of the property sold. These remedies being inconsistent, the plaintiff could elect which he would pursue, but he could not have both. (Parke v. White River Lumber Co ., 101 Cal. 37, and cases there cited.)
The question, therefore, is whether the presentation of the plaintiff's claim for the unpaid purchase money to the administratrix of Ewing's estate, and its approval by her and by the court, was such an election as debarred the plaintiff from pursuing its subsequent action to recover the possession of the property upon the assumption that the title had never passed to the purchaser.
I think it clear that the plaintiff was bound by its election in presenting the claim. Default had been made by the purchaser long before Ewing's death. In fact, no payment had been made until more than a month after the first note became due. The right, therefore, of the plaintiff to have pursued and retaken the property existed before Ewing's death. If no default had been made prior to the presentation of the claim to the administratrix, it could properly have been presented as a contingent claim against the estate, the facts all being stated in the claim as presented; for, if no default had been made, the seller could not retake the property, and it would have been the right of the estate to have performed the contract by payment, and thus have acquired the absolute right to the property for the benefit of the estate. But the default having occurred, and the plaintiff having the right at and before the time of the presentation of the claim to pursue the remedy secured to it in the contract of retaking the property, there was clearly an election not to avail itself of this right, but of looking to the estate for the payment of the balance due upon the contract. And this is the more apparent from the fact that in the claim as presented, no mention was made of the terms of the contract, nor any assertion of any right other than the enforcement of the payment of the notes by the estate.
There are many cases cited by appellant to the effect that bringing an action for the recovery of a demand under like circumstances is such an election as debars the creditor from recovering the property under the claim that the title had not passed. That proposition is so well settled that these cases need not be cited, the only question being whether the presentation of the claim, and its allowance, was such election.
Section 1497 of the Code of Civil Procedure provides: "Every claim allowed by the executor or administrator, and approved by a judge of the superior court, or a copy thereof, as hereinafter provided, must within thirty days thereafter be filed in the court and be ranked among the acknowledged debts of the estate, to be paid in due course of administration."
It was held in Estate of McKinley , 49 Cal. 152, that when a claim is allowed the executor cannot afterward contest it. In Walkerly v. Bacon , 85 Cal. 137, that an allowed claim against an estate has the force and effect of a judgment payable in due course of administration. In Ormsby v. Dearborn , 116 Mass. 386, it was held that the creditor, who had proved a claim against an estate in bankruptcy as for goods sold and delivered to the bankrupt, cannot maintain an action of replevin for the goods by proof that he did not sell them to the bankrupt. Louis v. Triscony , 58 Cal. 304, does not conflict with the foregoing authorities.
Respondent claims that plaintiff was not bound to make an election until all the circumstances are known, and the condition and value of the funds belonging to the estate are clearly ascertained. That until so known and ascertained it is impossible for a party to make a discriminating and deliberate choice such as ought to bind him in reason and justice. That, therefore, if he should make a choice in ignorance of the real condition of the estate, or under a misconception of the extent of claims upon the fund, it is not conclusive on him; and this, the respondent contends, is the case, whether the election has resulted in a claim being allowed by the court in the estate, or where a supposed election has been prosecuted and a judgment against the estate obtained on the rejected claim. This contention appears to be based upon the fact disclosed upon the trial, that the claims allowed against the estate largely exceeded the value of the assets as shown by the inventory, but there is nothing in the record tending to show that the plaintiff was misled by any one as to the condition of the estate. If the plaintiff failed to investigate and ascertain whether the estate was solvent or insolvent, it cannot shield itself from the result of this want of care.
So far as the record discloses the plaintiff filed its demand against said estate voluntarily and without in any manner being misled by the defendant.
Counsel, however, cite the case of Wells v. Robinson , 13 Cal. 142, in which the general proposition is stated that "before any presumption of an election can arise it is necessary to show that the party acting or acquiescing was cognizant of his rights," and that, "when this is ascertained affirmatively it may be very necessary to consider whether the party intended the election." That case, however, is clearly distinguishable from this. In that case, Frierson, the defendant's intestate, had embezzled and converted to his own use money belonging to the plaintiff to the amount of $ 195,889. After his death and the appointment of his administrator, the plaintiffs presented to defendant their claim for said sum, with an affidavit appended averring that the estate was indebted to the plaintiffs in that amount, and also that $ 50,000 of this sum was paid by Frierson to the Sacramento Gas Company, and that for this amount the [42 P. 437] plaintiffs claimed a lien upon all the gas stock of the estate, and all bonds of the gas company held by defendant as administrator. The administrator rejected the whole claim. Thereafter the plaintiffs commenced a common-law action against the defendant for the whole amount of the claim as a money demand, and recovered judgment for the whole sum. Pending this suit, and before judgment, plaintiff filed a bill in equity to reach the gas stock and bonds in the hands of the administrator, being the same stock and bonds mentioned in their claim as filed. The plaintiffs recovered in that action also, and the administrator appealed from the decree in equity. The same contention was made there as here, that plaintiffs, by presenting their claim for a money demand, and obtaining judgment thereon, were debarred from prosecuting their action in equity. It was said, however, by this court, in addition to the quotations above made, that the claim presented to the administrator was for the bonds and stock as a part of the subject of the embezzlement; and the court held that under the circumstances of that case both remedies might be pursued, the judgment at law to be credited with whatever should be realized in the equitable action.
The claim filed with the administrator referred to the bonds and stock and claimed a lien thereon, thus indicating plaintiff's intention to secure, as against other creditors, the benefit of the stock and bonds, and the claim having been rejected a resort to equity to secure the stock and bonds was appropriate and not inconsistent with the claim as filed; and this proceeding being in equity the court had ample power to protect the estate from a double liability, as was done by the provision in the decree that whatever should be realized in the equitable proceedings should be credited upon the judgment recovered at law, which fixed the amount of Frierson's defalcation. The distinction between that case and this is apparent. The judgment and order appealed from should be reversed.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.