Bolton Mines Co. v. Stokes

Citations

• 82 Md. 50
• 31 L.R.A. 789
• 33 A. 491
• 1895 Md. LEXIS 113

Syllabus

<p>Election Between Remedies — Estoppel by Judgment— Voluntary Discontinuance of Suit — Replevin—Rescission of Contract.</p> <p>Where a party has the choice between two or more alternative remedies or forms of action, and, selecting one of them, he pursues it to final judgment, then, whether that judgment be for him or against him, he cannot resort to the other form of action against the same defendant for the same demand.</p> <p>But a discontinuance before judgment by a plaintiff of a suit in one of such forms of action, does not prevent him from afterwards resorting to the other remedy.</p> <p>Plaintiff sold goods to a party who failed and made an assignment for the benefit of creditors before the maturity of the note given to plaintiff for the purchase money. Plaintiff attempted to rescind the contract of sale and sued out a writ of replevin, under which the goods sold were taken from the trustees in the assignment and delivered to plaintiff. Plaintiff offered to return said promissory note, which offer was refused by the trustees. The replevin suit was dismissed by plaintiff before judgment, and afterwards the trustees recovered judgment on the replevin bond for the value of the goods seized. This judgment was paid. Plaintiff then claimed payment of the promissory note from the estate in the hands of the trustees. Held, that plaintiff was not estopped to claim payment of the note from the assets in the hands of the trustees, because he had instituted and abandoned before judgment the replevin suit.</p>