Pittsburgh Plate Glass Co. v. Young

2 Citing cases

  1. Ludlow v. Free

    222 Ind. 568 (Ind. 1944)   Cited 7 times
    In Ludlow, supra, upon breach of a compromise agreement, the plaintiffs filed a suit on the original tort action but then amended the complaint to include a count for breach of the settlement contract.

    In Nave v. Powell (1916), 62 Ind. App. 274, 110 N.E. 1016, while the court used some language favorable to the contention of the appellants, it was held that there had been no election of remedies in that case because there had actually been only one remedy available and as the court said "The doctrine . . . has no application where a party erroneously thinks he has a remedy that does not in fact exist. . . ." In Pittsburgh Plate Glass Co. v. Young (1926), 84 Ind. App. 313, 151 N.E. 227, the court said that when a contract is repudiated by one party the other party may elect to treat the contract as breached and sue for damages suffered by reason of such breach, "And when he does so elect, and brings his action based upon the remedy which he has elected, with knowledge of the facts, and of his rights, he may not thereafter maintain his action upon an alternative remedy which is inconsistent with the remedy which he has elected to follow." In that case the court was speaking of the adoption by the plaintiff of an "inconsistent theory" twenty-two years after his right of action accrued and nine years after he had elected to prosecute another remedy.

  2. Banta v. Banta

    118 Ind. App. 117 (Ind. Ct. App. 1948)   Cited 6 times

    When a party to an action chooses one of two or more co-existing, but necessarily inconsistent and repugnant, remedial rights growing out of the same known facts and 4, 5. prosecutes the same to judgment he has elected his remedy and is precluded from pursuing the other or others. Pittsburgh Plate Glass Co. v. Young (1926), 84 Ind. App. 313, 151 N.E. 227; American Car, etc., Co. v. Smock (1911), 48 Ind. App. 359, 91 N.E. 749, 93 N.E. 78. As a general rule a remedy based on the theory of the affirmance of a transaction is inconsistent with a remedy arising out of the same facts and based on the theory of its disaffirmance, so that the election of either is a repudiation of the other.