Art. 4. Waiver of Tort and Effect of Election of Remedies.

tel v. Lightstone, 77 N. Y. 96; Fields v. Bland, 81 N. Y. 239; Neudecker v. Kohlberg, 81 N. Y. 296; Sparman v. Keim, 83 N. Y. 245, 249; Lockwood v. Quackenbush, 83 N. Y. 607; Harrington v. Bruce, 84 N. Y. 103; Osborn v. Bell, 5 Den. 370; Schroeppel v. Corning, 6 N. Y. 107; Cobb v. Dows, 10 N. Y. 335; Allen v. Brown, 51 Barb. 86, 44 N. Y. 228; Berly v. Taylor, 5 Hill, 577; Tryon v. Baker, 7 Lans. 511.

That the plaintiff may waive a tort, and proceed upon an implied contract, see City National Bank v. National Park Bank, 32 Hun, 105 (111); Byxbie v. Wood, 24 N. Y. 607; Austin v. Rawdon, 44 N. Y. 63; Kilbourne v. Supervisors, 137 N. Y. 170 (177).

The right of a plaintiff to waive a tort is clear. Goodwin v. Griffis, 88 N. Y. 639.

It is optional for the injured party to waive the tort and rely upon contract, if he chooses to do so, where the facts authorize such an action. A right to waive a cause of action in tort, and found the right upon contract, whether express or implied, is unquestionable, and there is no power with the defendant or any court to compel the plaintiff to proceed upon the tort. People v. Wood, 121 N. Y. 522 (529).

In Abbott v. Blossom, 66 Barb. 353, at 356, the language of Tindal, J., in Young v. Marshall, 8 Bing. 43, is cited: "No party is bound to sue in tort, where, by converting the action into an action of contract, he does not prejudice the defendant, and, generally speaking, it is more favorable to the defendant that he should be sued in contract, because that form of action lets in a set-off, and enables him to pay money into court.' And it may be added, under our law, in the absence of fraud, relieves him from the liability to arrest.

"The principle upon which this right to waive the tort and sue in assumpsit rests, as we understand it, is, that as a party cannot set up or take advantage of his own wrong, he cannot be permitted to say he is not liable for the value of the goods, or for the money received on the sale of them, for the reason that his act of appropriation was a tort."

In Wigand v. Sichel (Court of Appeals), 33 How. Pr. 174 (176), Hunt, J., says that plaintiffs are not bound to bring an action for each deceit, or of trover or of replevin, but can waive the tort and bring an action on contract. This rule is recognized in McGold

Art. 4. Waiver of Tort and Effect of Election of Remedies.

rick v. Willits, 52 N. Y. 612 (620), cited with approval in Knapp v. Simon, 96 N. Y. 292.

A fraudulent sale of goods may be charged in an action on contract for the price, or in an action for tort as a trespasser at the election of the injured party. Cary v. Hotaling, 1 Hill, 311.

Where goods deposited are wrongfully sold by the bailee the owner may sue in trover or waive the tort and sue in assumpsit. Berly v. Taylor, 5 Hill, 577.

So if a pledgee refuses to restore property to a pledgor upon demand and performance of the obligation to secure which the pledge was made, an action may lie either on contract or in tort. International Bank v. Monteath, 39 N. Y. 297; Tryon v. Baker, 7 Lans. 511.

In Comstock v. Hier, 73 N. Y. 269, it was held that plaintiff had an election either to bring an action for trover for the conversion of a note, or for money had and received, to recover money realized by defendant on the sale thereof.

In Thayer v. Manley, 73 N. Y. 305, it was held that although in that case plaintiff had a remedy by an equitable action to compel the cancellation and surrender of certain notes, he was not obliged to resort to that remedy, but might sue for the conversion.

In Byxbee v. Wood, 24 N. Y. 607, and Union Bank v. Mott, 27 N. Y. 633, the question is discussed as to what allegations in the complaint are to be regarded as determining whether the action is in tort or upon contract.

Where the cause of action set forth is doubtful or ambiguous from intendment, the rule is in favor of construing it as in the nature of an action ex contractu, rather than ex delicto. Goodwin et al. v. Griffis, 88 N. Y. 629 (639).

And an action brought upon contract cannot be changed to an action ex delicto, and a recovery had. Munger v. Hess, 28 Barb. 75 (78), citing 2 Kent Comm. 241.

There is a manifest hardship in allowing a recovery for a tort in an action ex contractu, for the reason that such a recovery might subject the defendant to an imprisonment of his person. Beard v. Yates, 5 T. & C. 76 (79); s. c., 2 Hun, 466.

Our courts allow an election between contract and tort to be made in all cases where the plaintiff would have been allowed to pursue his remedy in tort, and it is said in Roth v. Palmer, 27 Barb. 652 (655), that the decisions of the court have been too

Art. 4. Waiver of Tort and Effect of Election of Remedies.

numerous and too uniform to allow any distinction or limitation upon this rule. Citing numerous authorities.

“Where an agent converts property of his principal in his hands, and which he has agreed to account for and pay over, the principal has his election to sue for the breach of the contract or for the conversion; and if he elects to proceed for a breach of the contract, he may interpose it as a counterclaim in an action upon contract brought against him by the agent." Coit v. Stewart, 50 N. Y. 17.

In Terry v. Munger, 121 N. Y. 161, it was held that the owner of personal property which has been wrongfully converted by another, may, although the property is retained by the wrongdoer, waive the tort and sue for and recover its value upon an implied contract of sale. Cited and followed in Disbrow v. Westchester Hardwood Co., 164 N. Y. 415 (424).

In Rice v. Manley, 66 N. Y. 82, the question is considered as to the right to maintain an action for tort where the contract was not binding under the statute of frauds.

Where goods were sold upon a credit extended to defendant in reliance upon the false and fraudulent statement made by him, the plaintiffs have the right either to disaffirm the sale and proceed in replevin to recover their goods, or they can waive the tort and proceed in assumpsit for the purchase price of the goods. Heilbron v. Herzog, 165 N. Y. 98.

The tort may be waived in order that a claim may be used by way of set-off. Coit v. Stewart, 50 N. Y. 17; Wood v. Mayor, 73 N. Y. 556.

But a counterclaim arising out of the same transaction cannot be defeated by changing the form of action, nor can a discharge in bankruptcy be thus avoided. Campbell v. Perkins, 8 N. Y. 430; Thompson v. Kessell, 30 N. Y. 383.

Where a complaint sets forth a cause of action ex contractu an allegation therein of a legal conclusion having the aspect of a tort, does not change the nature of the action. Greentree v. Rosenstock, 61 N. Y. 583; Conaughty v. Nichols, 42 N. Y. 83.

SUBDIVISION 2.

What Constitutes an Election.

In Droege v. Ahrens & Ott Mfg. Co., 163 N. Y. 466 (470), it is said: "It was observed by Chancellor Kent in Sanger v. Wood, 3 Johns. Ch. at p. 421, that any decisive act of the party, with

Art. 4. Waiver of Tort and Effect of Election of Remedies.

knowledge of his rights and of the fact, determines his election in the case of conflicting and inconsistent remedies.' This is the principle upon which is based the doctrine of the election of remedies, where two exist in a given case which are substantially inconsistent."

It was also held: "A vendor cannot affirm the existence of a contract of sale for the purpose of a recovery under it, and subsequently treat the contract as avoided by the fraud of the vendee, provided the act in affirmation was with knowledge of the essential facts constituting the fraud; and where with such knowledge the vendor files a verified proof of claim for the purchase price with the assignee of the insolvent vendee, it is such an election by the vendor to ratify the contract of sale as will preclude him from thereafter maintaining an action to rescind it upon the ground of fraud.”

In Deitz v. Field, 10 App. Div. 425, 41 N. Y. Supp. 1087, the rule is reiterated that the current of authorities in this State is to the effect that where a party has the choice between two inconsistent remedies, the commencement of an action will be deemed a conclusive election between them. Distinguishing 103 N. Y. 27, upon the ground that there was no finding or request to find that the plaintiffs, when they brought the action on the contract, knew of the tort. Citing Conrow v. Little, 115 N. Y. 387, and distinguishing Smith v. Savin, 141 N. Y. 317; Russell v. McCall, 141 N. Y. 437, following Terry v. Munger, 121 N. Y. 161; Moller v. Tuska, 87 N. Y. 166; Fowler v. Bowery Savings Bank, 113 N. Y. 450.

In Equitable Co-operative Foundry Co. v. Hersee, 33 Hun, 169, authorities are cited tending to hold that where certain classes of actions have been commenced and not prosecuted to judgment, it does not constitute an election. Same case, 103 N. Y. 25, it was held that the mere bringing of an action for the price of goods sold is not a binding election of remedies, or a waiver of the right to rescind the sale on the ground of short notice. The action was brought without knowledge of the fraud. In the following cases it is held that the action of the plaintiff had been such as to amount to an election: Drennan v. Boice, 19 Misc. Rep. 641, 44 N. Y. Supp. 394; Seeman v. Bandler, 26 Misc. Rep. 372, 56 N. Y. Supp. 210, affirming 25 Misc. Rep. 328, 54 N. Y. Supp. 564; Terry v. Buek, 40 App. Div. 419, 57 N. Y.

Art. 4. Waiver of Tort and Effect of Election of Remedies.

Supp. 980, citing Fowler v. Bowery Savings Bank, 113 N. Y. 453; Riley v. Albany Savings Bank, 103 N. Y. 669; Harris v. Pryor, 44 St. Rep. 495, 18 N. Y. Supp. 128.

As to what action by the plaintiff does not constitute an election, see Cook v. Adams, 32 App. Div. 385, 53 N. Y. Supp. 120; Henderson v. Bartlett, 32 App. Div. 435, 53 N. Y. Supp. 149; Rhinelander v. National City Bank, 36 App. Div. 11, 55 N. Y. Supp. 229; Haas v. Selig, 27 Misc. Rep. 504, 58 N. Y. Supp. 328, affirming 26 Misc. Rep. 191; Schaut v. Schauroth, 46 App. Div. 450, 61 N. Y. Supp. 767; American Box Machine Co. v. Zentgraf, 45 App. Div. 522, 61 N. Y. Supp. 417; Lindsay v. Gager, 11 App. Div. 93, 42 N. Y. Supp. 851; Koke v. Balken, 15 App. Div. 415, 44 N. Y. Supp. 426.

"Where a vendor, having no knowledge of fraudulent representations, by which he was induced to make a sale of goods to the vendee, sues for the price of the goods and recovers an uncollectible judgment, that action cannot be deemed an election of remedies by the vendor, which will bar a subsequent action by him to recover damages for the fraud." Albany Hardware & Iron Co. v. Day, 11 App. Div. 230, 42 N. Y. Supp. 971, citing Rochester Distilling Co. v. Devendorf, 72 Hun, 428, 25 N. Y. Supp. 200; Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y. 25; Hays v. Midas, 104 N. Y. 602, and distinguishing Caylus v. N. Y., K. & S. R. R. Co., 76 N. Y. 609.

Albany Hardware Co. v. Day, supra, is also reported in 4 N. Y. Annot. Cas. 90, and followed by a careful and valuable note on "Remedy for Tort after Suit on Contract," in which it is said that it appears to go farther than any of the prior decisions on the point there involved, and that it is difficult to harmonize it with Cormier v. Hawkins, 69 N. Y. 188, citing Underhill v. Ramsey, 125 N. Y. 681; Crossman v. Universal Rubber Co., 127 N. Y. 35; Conrow v. Little, 115 N. Y. 387; Bach v. Tuch, 126 N. Y. 53; Robert v. Winne, 144 N. Y. 709.

SUBDIVISION 3.

Effect of Election of Remedies.

Keener on Quasi-Contracts, 159, says that the doctrine of waiver of tort is simply a question of the election of remedies, and cites Cooper v. Cooper, 147 Mass. 370, as follows: "The same