Hughes v. Vermont Copper Mining Co.

Headnote

Inconsistent remedies, not permitted — Action against corporation for conversion of stock — inconsistent with action to recover dividends subsequently declared on the stock.

Appeal from a judgment in favor of the defendant, entered on the decision of the justice at a Special Term. The action was for dividends declared by the defendant, a corporation located in Vermont, on shares of its stock formerly owned by F. Cutting and J. E. Smith. While the stocks were owned by them, the company, holding the meetings out of that State, assessed the stocks, and sold

them on the assessments, for non-payment- thereof. The plaintiff in this action was the assignee of one Orinsby, who was the assignee of F. Cutting and J. Smith. Before the assignment by Orinsby to the plaintiff, and before the dividends sued for were declared, he (Ormsby) brought an action against the company for conversion of the stock.

The court at General Term say: “Although the sale of the stock of Cutting and Smith was illegal, yet, as the corporation had fully ratified the transfer thereof to the purchaser at such sale, such transfer, coupled with the subsequent refusal by the corporation to recognize Ormsby, the plaintiff’s assignor, who had succeeded to the rights of Cutting and Smith, as owner of the stock, and to pay him the dividends thereon, were unequivocal acts of conversion and subjected the corporation to an action by Ormsby to recover the damages consequent thereon, or to a suit in equity to compel the corporation to accord to him the rights and privileges of a stockholder, and to pay him the dividends which had accrued upon the stock. It appears that Ormsby elected to pursue the former remedy, and brought an action of trover to recover the damages which lie had sustained by reason of the conversion. That remedy is entirely inconsistent with the claim made in this suit to be paid the dividends which have accrued on the stock. One proceeds on the ground that he has been illegally divested of the stock, while the other rests upon the allegation that he owned it until lie assigned it, and that his assignee still owns it. A party cannot be permitted thus to seek inconsistent remedies. Tie must elect to pursue one or the other of them. The bringing of the action of trover was an election of that remedy, and forever precluded a resort to the other. (Coin. Dig-., Election, 62; Fireman) s Ins. Co. v. Lawrence, 14 Johns., 55 ; Morris v. Rexford, 18 N. Y., 552 ; Rodermwid v. Clark, 46 id., 354; Goss v. Mather, id., 689.) The plaintiff being the assignee of Ormsby stands in his shoes. The doctrine of election of remedies, as applied to the facts of this case, is plainly equitable and just. It appears that Ormsby’s action of trover is still pending. The same evidence which would entitle him to a recovery in that action, would also entitle his assignee to recover in this; hence, if both remedies should be tolerated, there might be a double recovery, namely, in one action

for the value of tlie stock at tlie time of the conversion, with the interest thereon, and in tbe other for the dividends which represent the interest on the value of the stock.