as to demand another trial. It was calculated | covered upon her person. It is true she to inflame the passions of the jury and to excite their prejudice. We do not deem it necessary to go into the details of the revolting evidence in this case, but we feel constrained to say, after a careful examination of the record, that we do not feel satisfied with the correctness of the verdiet, and, if we had jurisdiction to do so, we would grant the defendant another trial, on the ground that we entertain very serious doubt of his guilt. But, as we have repeatedly ruled, we have no power, under the constitutional amendment creating this court, to grant a new trial except for errors of law. Wherever there is any evidence to support the verdict, however weak that evidence may appear, to us the voice of the jury as to the truth in the facts must be accepted by us as vox Dei. In this case there was one witness as to the corpus delicti. This was the little victim of the alleged assault. If the jury believed her, her testimony was sufficient under the law to support a verdict of guilty. Ordinarily, the unprompted and spontaneous testimony of a child is entitled to great weight, and if, in this case, the little girl had made complaint to her mother or to some one else immediately after the alleged offense was committed, her testimony would need no other corroboration to convince the mind of its truth. But when, as in this case, she did not make complaint, either to her mother or to any one else, until several weeks after the offense was alleged to have been committed, and then told her of the defendant's repeated assaults upon her, it was done under circumstances which greatly impaired its probative value as corroboration. She also stated in her testimony that she was "just telling what her mamma told her to tell," and that her mother had frequently rehearsed with her the subject-matter of her testimony. A suspicion naturally arises that the narrative which she gave of the facts was not entirely spontane ous and of her own initiative. states that the defendant threatened to whip her if she told her mother; but it is incredible that the child would have kept silent under the circumstances, or that her mother or sister would not have discovered some physical signs upon her person caused by the commission of these terrible crimes. There are some other facts which tend to establish the improbability of the truth of the accusation. The little girl was the niece of the defendant's wife. She was frequently an inmate of his own house, and a companion and playmate of his own little children, and he was frequently a visitor to the home of his sister-in-law. He seems to have been a devoted husband and father, and an active and official member for many years of his church; a man presumably of good character, against whom no charge had ever been made by any one, except by his brother-in-law, the prosecutor in this case, who on two previous occasions, according to the evidence, had without the slightest foundation taken out a warrant against him for bastardy in connection with his oldest daughter, and had charged him with being criminally intimate with his wife. Two previous groundless charges of the same general character, made by the prosecutor against the defendant, furnish some reason for a suspicion, at least, that the present prosecution might come from the same source and be inspired by the same feeling of anger and jealousy. The great blind poet of England has declared that hypocrisy is a sin that walks unseen, except to God alone; but it is inconceivable that a man who had lived a life of rectitude beyond middle age, a devoted husband and father, should be capable of committing a crime so heinous and a sin so foul as to repeatedly outrage the person of a little girl who in his statement to the jury he says was "as sweet and smart a little girl as I ever saw, as kind as anybody's little girl." There are some crimes which stagger even the credulity of those who believe in the doctrine of total depravity. class of crimes, and should be proved by the The charge against the defendant is of that clearest and most convincing evidence. Judgment reversed. KENNEDY v. MANRY. The story which the little girl tells in her evidence is also unreasonable in several respects. She testified that the defendant had on one occasion assaulted her in his own house, where she was nursing his baby, and while his wife was in the next room, and that she made no outcry; that on another occasion he assaulted her in her father's crib near the house, and she made no outery; and that on the last occasion the criminal act took place in her own home, in the absence of her father and mother, and while the other children were playing in the yard. She further states that on two of these occasions the defendant, without difficulty, fully accomplished his purpose and had sexual intercourse with her. During all of this time she made no complaint to any one, and no [Ed. Note.-For other cases, see Election of physical evidence of such assaults was dis- Remedies, Cent. Dig. § 16; Dec. Dig. § 14.*] (No. 1,706.) (Court of Appeals of Georgia. Nov. 9, 1909.) 1. ELECTION OF REMEDIES (§ 14*)-EFFECT. While one may pursue any number of concurrent and consistent remedies, he will not be permitted, after the choice of one of two or more inconsistent remedies which he might originally have pursued at his option, to change his base and adopt a course wholly inconsistent with the remedy which he first selected. 2. SALES (8 107*)-ELECTION OF REMEDIES (§| Manry. Judgment for defendant, and plain3)--DISAFFIRMANCE-CHATTEL MORTGAGE tiff brings error. Affirmed. FORECLOSURE-TROVER. Where one has the option either to affirm or to disaffirm a sale, and thereby fix the relative status of the parties to the contract, and exercises this option, he is bound by his election, regardless of the effect of his election upon the rights of others, and regardless of the knowledge or conduct of other parties in interest. (a) The foreclosure of a mortgage upon personal property as the property of the mortgagor is such a disaffirmance of title by the mortgagee as waives the assertion of title, although the mortgage may be only a part of a contract which also contains a reservation of title, and although the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover. [Ed. Note. For other cases, see Sales, Cent. Dig. § 276; Dec. Dig. § 107;* Election of Remedies, Cent. Dig. §§ 3, 4; Déc. Dig. § 3.*] 3. ESTOPPEL (§ 52*)-WAIVER-ELEMENTS. "Waiver" and "estoppel" are not synonymous terms. Waiver belongs, in a sense, to the family of estoppel; and yet estoppel in pais has connections that are no kin to waiver. Waiver is voluntary and intentional; estoppel in pais may arise from an involuntary and unintentional act. Estoppel results from an act which operates to the injury of the other party; and there may be a waiver, although the opposite party is beneficially effected. A waiver by election results where a choice is exercised between inconsistent remedies (as where one action is founded on affirmance and the other upon disaffirmance of a voidable sale of the property), and in such a case any decisive act of affirmance or disaffirmance, done with knowledge of the facts, determines the legal right of the parties once for all. Estoppel may arise even between consistent remedies; but it depends rather upon what a party caused his adversary to do, while waiver depends upon what one himself intends to do. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 121-127; Dec. Dig. § 52.* For other definitions, see Words and Phrases, vol. 3, pp. 2494-2496; vol. 8, p. 7654; vol. 8, pp. 7375-7381, 7831, 7832.] (Syllabus by the Court.) 4. ESTOPPEL (§ 52*)—EQUITABLE ESTOPPELELEMENTS. RUSSELL, J. The decision in this case turns upon whether the plaintiff in error, that which he is now attempting to assert, by the election of a remedy inconsistent with has waived a right which he might otherwise have enforced. It is well settled that one may pursue any number of concurrent and consistent remedies. It is also settled, as well argued by counsel for plaintiff in error, that an estoppel does not generally result unless the opposite party is misled and caused to act to his prejudice. To constitute an estoppel by conduct, there must be (1) a false representing or concealment of fact; (2) it must be in the knowledge of the party making the one or conceding the other; (3) the person affected thereby must be ignorant of the truth; (4) the person seeking to influence the conduct of the other must act intentionally for that purpose; (5) the person complaining must have been induced to act by reason of such conduct of the other; and (6) he must in fact act upon it in such a manner as to change his posi tion for a worse. See. 3 Words and Phrases. P. 2598; Tinsley v. Rice, 105 Ga. 290, 31 S. E. 174; Roberts v. Davis, 72 Ga. 819; Ross v. Cooley, 113 Ga. 1047, 39 S. E. 471 (2). While, however, this case was argued apparently with a view of showing that nothing in the conduct of Kennedy amounts to an estoppel, and it may be conceded that Manry was in no sense deceived or overreached, and that he has not sustained loss by any act of Kennedy, still, in our opinion, none of these has any bearing upon the question before us. Let it be conceded that Manry was as conversant with all of the details of the transaction between Kennedy and Mason as Kennedy himself, and that he acted entirely upon his own judgment, influenced by nothing that Kennedy did or said. Kennedy would not be estopped by conduct; but it would not follow from this that, after having elected to foreclose his note as a mortgage, he could change his base, disaffirm his sale, and proceed by trover to assert that the mule in question was his own property. We bear in mind that there is a difference between an election of remedies and a mistake of remedies, and that a person who prosecutes an action or suit based upon a remedial right which he supposes he has, and is defeated because of the er[Ed. Note.-For other cases, see Appeal and ror, is not precluded from prosecuting subError, Cent. Dig. §§ 3408-3430; Dec. Dig. $sequent action or suit based upon a consist854.*] To constitute an estoppel by conduct, there must be a false representation or concealment of fact, knowledge of the party making the one or concealing the other, ignorance of the truth by the party affected, intentional act by the person seeking to influence the conduct of the other, and the person complaining must have been induced to act by reason of such conduct of the other and must have changed his position in fact for a worse (citing 3 Words and Phrases, p. 2598). [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 124; Dec. Dig. § 52.*] 5. APPEAL AND ERROR (§ 854*) REVIEW REASONS FOR DECISION. - A judgment will be affirmed, if it is right, even though the reason assigned for its rendition is wrong. ent remedial right. In other words, if Ken Error from City Court of Forsyth; W. M. nedy had previously supposed that he could Clark, Judge. foreclose his paper as a mortgage, when as a matter of fact he could not, he would not Action by J. L. Kennedy against B. H. be precluded thereafter from asserting title in himself and proceeding by trover to recover the mule in question. tract or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal right of the parties, once for all. The institution of a suit is such a decisive act by a party with knowledge of his rights under the facts as determines his election in the case of inconsistent remedies." See, also, McNutt v. Hilkins, 80 Hun, 235, 29 N. Y. Supp. 1047, 1049; Welsh v. Carder, 95 Mo. App. 41, 68 S. W. 580. Waiver belongs to the family of estoppel in a sense, and yet an estoppel in pais has connections that are no kin to waiver. Waiver depends upon what one himself intends to do; estoppel depends rather upon what he caused the implication of fraud; waiver, by election, does not. Estoppel may arise even as between consistent remedies; for waiver by election to operate as a bar, the remedies must be inconsistent. As we see it there is no estoppel in this case. For that reason most of the evidence becomes immaterial. But it appears from the two notes in the record that each of them could properly have been foreclosed as mortgages. They were so foreclosed. This court did not hold, when another branch of this case was before us, that the papers now before us could not be foreclosed as mortgages, or whether Kennedy was or was not entitled to the funds in the hands of the constable. Kennedy v. Rumble, 4 Ga. App. 415, 61 S. E. 839. The case went off because there was no proper assignment of error in the bill of exceptions, and the judgment of the lower court stood affirmed, because it was not his adversary to do. Estoppel may carry properly excepted to. The defense of the defendant in error does not depend upon the equitable doctrine of estoppel in pais, the essentials of which we have noted above, but rather upon the plaintiff's election of a remedy inconsistent with the one he now seeks to assert, whereby he waived his right to assert, a right which he possessed, independently of its effect upon the other party. When Kennedy was about to assert his rights under the notes in the record, he had the option either to proceed to foreclose his notes as mortgages, or to assert the title which he had reserved therein and proceed by trover to recover the property. In other words, he had the option either to affirm or to disaffirm the sale of the mules. This right was not affected by Manry's knowl-nedy's act was the conclusive exercise of edge or lack of knowledge, and could be asserted, whether its effect upon Manry was favorable or injurious. He had the option to treat the mules either as his own property or as the property of Ralph Mason. By the foreclosure of the mortgage he elected to disaffirm his own title and to assert in court that the mules were the property of Mason, and subject to sale as Mason's property. The material facts in the record which sustain the judgment of the lower court are that Kennedy foreclosed his mortgage, placed it in the hands of the officer, and claimed the fund which resulted from the sale of the mule under Rumble's fi. fa. It matters not that nothing that he did influenced the conduct of the other party, and that the other party, knowing every fact that Kennedy knew, acted upon his own judgment. Ken his option to affirm the sale of the mule to Mason, when he had a like option to disaffirm the sale and proceed to assert his title by trover. This case is very similar to that of Rowe v. Weichselbaum Co., 3 Ga. App. 504, 60 S. E. 275, in which we held that the doctrine of estoppel did not enter into the case, that "an election once made, with knowledge of the facts, between coexistent remedial rights which are inconsistent, is ir Waiver is voluntary and intentional, and revocable and conclusive, irrespective of inestoppel in pais may be involuntary and un- tent, and constitutes an absolute bar to the intentional. Estoppel results from an act maintenance of a defense founded on such inwhich may operate to the injury of the oth-consistent rights." It was also ruled in er party; waiver may affect the opposite James v. Avery, 3 Ga. App. 357, 59 S. E. 1118, party beneficially. "Waiver is a voluntary that "one who in the sale of personal prop relinquishment of a right." French v. Sea-erty has reserved title thereto may, by trover, mans, 21 Misc. Rep. 722, 726, 48 N. Y. Supp. 9, 13. “Waiver is a voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed." Peabody v. Maguire, 79 Me. 572, 585, 12 Atl. 630; Austin v. Welsch, 31 Tex. Civ. App. 526, 72 S. W. 881; Dailey v. Kennedy, 64 Mich. 208, 31 N. W. 125; Cowenhoven v. Ball, 118 N. Y. 234, 23 N. E. 470. The doctrine is well stated as follows in Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. 4, 39 L. Ed. 52: "The benefits of 'waiver by election' arise where the remedies are inconsistent, as where one action is founded on an affirmance, and the other recover the same even against the purchaser at a judicial sale; but where the personal property to which title has been reserved is sold under an order of a court, and the vendor who has reserved the title elects to claim a lien upon the fund, he is estopped thereafter from asserting his title as against the property, and is confined to the proceeds of the sale." See, also, Mitchell v. Castlen, 5 Ga. App. 134, 62 S. E. 731. It is true that in the James Case the purchaser took no part in bringing about the sale of the property and did not advise with the opposite party (as appears to have been the fact in the present case), and for this that the decision in that case is not in point. | which he may elect between two inconsistent As we stated before, however, waiver by proceedings, the choice of the position which election is not dependent for existence either he will take must be made before bringing upon the knowledge or ignorance of the af- suit, or in doing so. He has no right to bring fected party or his action or nonaction. It either action; except by selecting and deteris the intentional exercise of one's right of mining to occupy a position consistent with choice which, wholly irrespective of any of that action and inconsistent with the other. his adversary's rights, does not permit him If, with actual knowledge or notice of the to play fast and loose with the courts. It is substantial facts, he chooses the position unnecessary for us to decide whether the which he will occupy, and which will aujudgment of the trial court, if based upon thorize him to appeal to the courts for one the principle contained in section 3823 of of the remedies, and does in fact proceed in the Civil Code of 1895, and upon the ground court to enforce such remedy, it would seem that Kennedy, having permitted Manry to to be little short of trifling with judicial propurchase his property without disclosing his cedure to allow him at his mere option to title, was guilty of fraud, was right or not. change his mind, dismiss his suit, repudiate The rule is well settled that a judgment will the position which he has thus so solemnly be affirmed, if it is right, even though the taken, assume another directly inconsistent reason assigned for its rendition be wrong. with it, and ask the courts to enforce a remeIn Board of Education v. Day, 128 Ga. 166, dy based on his new election. If he may 57 S. E. 359, Judge Lumpkin clearly points change his mind once, after having assumed out the difference between an estoppel in and thus declared his position and based his pais and the waiver of a pre-existing right to suit upon it, why may he not do so again? pursue a certain remedy which arises upon And where is the limitation upon decision the election of an inconsistent remedy. In and redecision, selection and reselection, and discussing the ruling of some courts which vacillation between inconsistent positions and held that a party is not barred from pursu- remedies, as it may appear to the litigant ing a different remedy in a second action or from time to time that his chances are betproceeding, if by doing so he does not take a position inconsistent with that before taken, ter in one direction or the other? Can he be or at least if nothing has been done as to the allowed to swim hither and thither in a sea former demand which has prejudiced the of legal uncertainty, until he has been transfixed by the harpoon of final judgment? To opposite party, Judge Lumpkin says: illustrate: An administrator or an agent, without due authority, sells property and takes notes therefor, or receives cash. The persons interested may elect to affirm or repudiate the transaction. They cannot do both. It would hardly be held that they could elect to confirm the sale, sue the administrator or agent for the proceeds, then dismiss the suit, elect to repudiate the sale, sue for the property, and alternate between the two positions as often as they should see fit, until judgment should be rendered, or until one or the other selected should be acted on so as to create an estoppel, on the same basis as it would arise from a mere verbal statement as to an existing fact, or silence where good faith required speech." Judgment affirmed. "Some of the cases which adhere to this latter view deal with the question as if it were one of estoppel in pais between parties to a transaction, and treat the bringing of the first suit as if it were only a representation or admission, and seem to think that there must be a superadded element of change in condition, or action in reliance on it, to prevent the plaintiff from dismissing his suit and asserting an inconsistent remedial right. To us this appears to be too restricted a view. Unquestionably a person may estop himself in this as in other matters by misleading another to his injury or causing such other to change his situation. But this doctrine of election of inconsistent remedies or inconsistent remedial rights rests on a broader basis. Where one is in a situation in CODY V. NORTON COAL CO. (Supreme Court of Appeals of Virginia. 18, 1909.) 1. WORDS AND PHRASES-"IMMEDIATELY." smoke in the ordinary way. The said plaintiff, as he had a right to do, supposing that Nov. said fuse failed to show any signs of taking fire, undertook to light the said fuse the second time, whereupon the said fuse again failed to show any signs of being lighted, as it should have done, and appeared to go out, whereupon the said Cody, again supposing that Said fuse had not taken fire, frazzled the end of the said fuse, as is customary and ordinary in cases of that kind, and again applied the blaze, and again the said fuse failed to respond or show any signs of having taken fire, whereupon the said plaintiff again frazzled the end of said fuse in the ordinary and customary way in mining, and applied the blaze again the fourth time, and immediately upon the application of the said blaze at the fourth time the said blast exploded thereby and with great force and violence, greatly injuring the said plaintiff by blowing out one of his eyes and severely injuring the other, breaking his left hand, tearing off his forefinger, and severely burning his face, TO SERVANT-CONTRIBUTORY NEGLIGENCE. The declaration alleged: That plaintiff, a mine employé, purchased from defendant, his employer, a fuse with which to set off a charge of dynamite in defendant's mine; that on being lighted the fuse failed to fuse and smoke in the ordinary way, whereupon plaintiff, supposing that it had gone out, frazzled the end of it and again applied the blaze, and, on its failing to respond, repeated the operation, when an explosion immediately occurred, and plaintiff was injured. Held, that the declaration was demurrable, as plaintiff was unwarranted in assuming that the fuse was defective because it failed to smoke, and that, in remaining by it after first lighting it, he was guilty of contributory negligence precluding his recovery. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 757; Dec. Dig. § 241.*] Error to Circuit Court, Wise County. Action by Zedekiah Cody against the Norton Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed. Pennington Bros. and Duncan & Kelly, for plaintiff in error. Bullitt & Chalkley and Ayers & Fulton, for defendant in error. KEITH, P. Cody, plaintiff in error, sued the Norton Coal Company to recover damages for an injury. The defendant demurred to the declaration. The demurrer was sus neck, and breast." The second count is substantially identical with the first in the statement of facts as to the accident and the conduct of plaintiff at that time, and differs from it in that it does not aver a warranty of the fuse at the time of the purchase, but that when the fuse was purchased the defendant held it out and represented it to be suitable for the purposes for which it was intended; that the plaintiff relied upon the said representations, was himself ignorant that the fuse was defective and unsuitable for the purposes for which it was intended; and that the defendant did know, or by the use of due and ordinary care should have known, at the time of the sale, that the fuse was dangerous and unsafe for the purposes for which it was purchased. tained, and the suit dismissed. The first count states: That the plaintiff was an employé of the Norton Coal Company, which was engaged in mining coal. That the plaintiff was required to furnish his own tools and blasting material necessary in per- The defendant stated as the grounds of its forming the services for which he had con- demurrer: "(1) That said declaration shows tracted with the defendant in and about the that the accident was caused by the contribubusiness of mining coal. That the defendant tory negligence of the plaintiff, viz., by his owned and operated a commissary store, remaining by the fuse after he had lighted where it sold to its employés blasting materi- it; (2) that the damage complained of was al, fuses, and tools. That he purchased from not the natural and probable result of a dethe defendant 50 feet of fuse for blasting fective fuse; and (3) that the damages compurposes, which the defendant warranted to plained of are too remote. Defendant says be suitable for the use for which it was in- that the second count in the said declaration tended. That afterwards he took a portion is not sufficient in law, and therefore it deof the fuse to the place assigned him to work murs thereto, and for grounds of demurrer in the mine, and, after having prepared to it alleges the same as are above set forth make a blast with the fuse in connection with with reference to the first count, and also bea stick of dynamite, the fuse so purchased cause said count does not show that defendfrom the defendant proved to be defective ant was in any manner responsible for any and not fit for the use for which he purchas-defect which might have existed in the fuse ed it, "and when the said fuse was lighted in the declaration referred to." in the ordinary way and according to approved methods of mining, and without any negligence or failure on the part of the said plaintiff to do and perform his duty in the manner of handling the said fuse, the said fuse, as a for said, when lighted, failed to fuse and For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes For our present purpose, we shall concede: First, that there was a warranty, express or implied, with respect to the fitness of the fuse for the purposes for which it was intended; and, secondly, that for the same purposes it may be conceded that the warranty 1 |