get possession of the grain, if possible, and transfer it, with the intent to cheat and defraud the plaintiffs out of the purchase price; that the plaintiffs elected to rescind the sale by stopping the grain in transitu; and that they did so stop it, and obtained possession of it by the process of replevin. In December of the same year the plaintiffs filed amended and substituted answers, in which were set out more fully the matters pleaded in the original answers. In February, 1894, the plaintiffs filed amended and substituted petitions, in which they alleged the sale of the grain in question to the grain company; that while the grain was in transit they learned that the purchaser was insolvent and unable to pay for the grain, and that thereupon they notified the railway company not to deliver the grain to the consignee, and elected to stop it and regain possession of it, for the purpose of asserting and regaining their lien thereon for the unpaid purchase price; that the consignee was, in fact, insolvent, and unable to pay for the grain, but that the plaintiffs had no knowledge of the insolvency and inability to pay for the grain until after it had been shipped; that by reason of the facts stated, the 729 plaintiffs became entitled to the immediate possession of the grain. At the same time they filed second substituted answers to the petition of intervention, and filed amendments thereto a few days later. In these the most of the statements of the first and second answers are repeated in substance; and it is alleged, further, that the intervenor had full knowledge of the condition and fraudulent intent of the grain company, and received the bills of lading to aid it in delaying, hindering, and defrauding its creditors, and that the transfer of the bills of lading to the intervenor was without consideration. The averments of the substituted petition in regard to the election of the plaintiffs to stop the grain in transit, for the purpose of securing the payment of the purchase price, are, in substance, repeated, and a lien upon the grain, paramount to any right thereto of the intervenor, is alleged. In its replies to the final answers to the petition of intervention, the intervenor alleges that, for reasons stated, the plaintiffs are estopped to assert any right to or interest in the grain adverse to it; that they elected to and did rescind the contract of sale, and cannot now assert a lien on the grain by virtue of a stoppage in transitu. The motion for a verdict in each case was based upon two grounds, of which the first was, in substance, that the plaintiffs had elected to rescind the sale, and therefore could not enforce a lien for the purchase price; and the second was that the title acquired by the intervenor through the transfer of the bills of lading had not been impeached. The

claim of the appellee in regard to the matters included in the first ground of the motion are that the plaintiffs, as against the grain company, had the right to select either of two remedies, to wit: 1. To rescind the contract of sale, and recover the grain as its absolute and unqualified owner; or 2. To stop the grain in transit, and enforce their vendors' lien for the purchase 723 price. It is further claimed that these remedies are so inconsistent that an election to pursue one terminates the right to resort to the other, and that the plaintiff's made an irrevocable election to rescind the sale; therefore, that they cannot enforce a vendor's lien in this action. The appellants deny that they had a choice of remedies, and insist that the changes in their claims of interest in the property were permissible under their right to amend the pleadings.

1. The rule in regard to the election of remedies is stated in Thompson v. Howard, 31 Mich. 312, as follows: "A man may not take two contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again." "Any decisive act of the party, with knowledge of his rights and of the fact, determines his election, in the case of conflicting and inconsistent remedies": Washburn v. Great Western Ins. Co., 114 Mass. 175; Sanger v. Wood, 3 Johns. Ch. 421; Rodermund v. Clark, 46 N. Y. 354; Sloan v. Holcomb, 29 Mich. 160; Crompton v. Beach, 62 Conn. 25; 36 Am. St. Rep. 323; Crook v. First Nat. Bank, 83 Wis. 31; 35 Am St. Rep. 17; O'Donald v. Constant, 82 Ind. 213; Bishop on Contracts, secs. 678-680, 683; 6 Am. & Eng. Ency. of Law, 250; Heinze v. Marx, 4 Tex. Civ. App. 599; Thomas v. Joslin, 36 Minn. 1; 1 Am. St. Rep. 624; Morris v. Rexford, 18 N. Y. 552. In Connihan v. Thompson, 111 Mass. 272, it was said: "The defense of waiver by election arises when the remedies are inconsistent, as where one action is founded on an affirmance, and the other 724 on a disaffirmance, of a voidable contract or sale of property. In such cases, any decisive act of affirmance or disaffirmance, if done with knowledge of the fact, determines the legal rights of the parties once for all." Where a vendor elects to rescind the sale of goods on the ground of a fraud, and recovers possession of them by an act of replevin, he cannot afterward, on failing to obtain adequate relief in that action, claim of the assignee of the insolvent purchaser as for goods sold. One theory is totally

at variance with the other. "If one elects between two inconsistent remedies, the right to pursue the other is forever lost": Farwell v. Myers, 59 Mich. 179. A contract of sale obtained by fraud is not void, but voidable, and the contract "continues until the party defrauded has determined his election by avoiding it, and, when once rightfully determined, it is determined forever"; and the bringing of an action to recover the property sold is such an election: Powers v. Benedict, 88 N. Y. 606. A party cannot both affirm and rescind a contract, and the commencement of an action, with full knowledge of the facts, is an election which is final, and the discontinuance of the action is immaterial. "When it becomes necessary to choose between inconsistent rights and remedies, the election will be final and cannot be reconsidered, even when no injury has been done by the choice, or would result from setting it aside": Terry v. Munger, 121 N. Y. 161; 18 Am. St. Rep. 803; 2 Hermann on Estoppel, secs. 1045-1051. In Bulkley v. Morgan, 46 Conn. 393, it appeared that one Brennan had purchased goods of the plaintiff by fraud, which would have authorized him to rescind the sale and reclaim the goods. With knowledge of the fraud, he commenced an action for the value of the goods, and attached them to secure his claim. He afterward discovered that his action was prematurely brought, and dismissed it, and then brought an action 725 of trover for the goods. It was held that he had affirmed the contract, with full knowledge of all the facts, and could not afterward rescind it: See, also, Acer v. Hotchkiss, 97 N. Y. 395. If an agent for the purchase of stock exceed his authority, his principal may ratify his act; and any expression of assent on his part, either by words, or conduct, would bind him, "not on the principle of estoppel, but as in other cases of election": Metcalf v. Williams, 144 Mass. 452. "Where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge of the facts, is in itself binding. It cannot be withdrawn without due consent. It cannot be withdrawn, though it has not been acted upon by another by any change of position": Bigelow on Estoppel, 673. "The defrauded party to a contract has but one election to rescind the same. If he once determines his election, it is determined forever. Hence, if it be shown that he has at any time after knowledge of the fraud, either by express words or by unequiv ocal acts, affirmed the contract, his election is irrevocable": Bigelow on Fraud, 436. "Ratification or election, once made, expressly or impliedly, is irrevocable, and binds not only the party but all claiming under him": Hermann on Estoppel, sec. 1065.

It was said in Pence v. Langdon, 99 U. S. 578, in regard to a fraudulent sale of shares of stock: "The election to rescind or not to rescind, once made, is final and conclusive." The election to rescind waives the right to sue on the contract: Tiffany on Sales, 120, 121. "A statement in a plea, by the party from whom the property passed, that he claims back the property, on the ground that he was induced to part with it by fraud, is as unequivocal a determination of his election to avoid the transaction as could well be made. ... After succeeding by means of such a plea, 726 the person pleading it could never successfully set up the contract as still valid": Clough v. Railway Co., L. R. 7 Ex. 36. The assignee in bankruptcy of a person who made a fraudu lent conveyance of property "has an election, not of remedies merely, but of rights. But an assertion of one is necessarily a renunciation of the other." The assignee may demand the property on the ground that the sale was void, or he may demand the price, but he cannot do both. If he commence an action for the price, and cause the property of the purchaser to be attached to secure it, this is an unequivocal assertion that the sale is not impeached, and, if done with knowledge of the facts, is conclusive: Butler v. Hildreth, 5 Met. 49. The rule we have been considering is not confined to contracts for the sale of property, but is of general application. Thus, a party holding personal property by virtue of a mortgage or pledge may waive his claim under the mortgage or pledge, and attach the property in a suit to recover the debt for which the mortgage or pledge was given. Such an attachment is in itself a waiver of the claim under the mortgage or pledge. The lien created by the latter is essentially different from that created by the attachment, and the two cannot exist at the same time: Evans v. Warren, 122 Mass. 303. See, also Whitaker v. Sumner, 20 Pick. 404; Wingard v. Banning, 39 Cal. 543; Libby v. Cushman, 29 Me. 429; Jacobs v. Latour, 5 Bing. 130; Sensenbrenner v. Mathews, 48 Wis. 250; 33 Am. St. Rep. 809. The commencement of an action to enforce a lien on certain machinery, although the action was dismissed by the plaintiffs without a trial, on the merits, was inconsistent with their ownership of the property, and was an election to treat the title as not in them: Van Winkle v. Crowell, 146 U. S. 42; Lehman v. Van Winkle (Ala., Feb. 12, 1891), 8 So. Rep. 870. Where the owner of land sues for the value of timber taken 727 therefrom, he cannot afterward maintain an action for the conversion of the timber, even though the court in which the first action was brought did not have jurisdiction of the defendant in that action: Nield v. Burton, 49 Mich. 53. The decisions of this court

are in harmony with the authorities cited: Klocow v. Patten, 93 Iowa, 432; Schneitman v. Noble, 75 Iowa, 121; 9 Am. St. Rep. 467; Citizens' Bank v. Dows, 68 Iowa, 460.

It is clear, under the rules of the cases we have been considering, that if the right to elect existed, the action of the plaintiffs in taking the grain in controversy and selling it, under a claim of absolute ownership, with full knowledge of all the material facts, was an election of rights and remedies which was final and conclusive. The claim under which these actions were commenced in November, 1891, was that the plaintiffs were the absolute and unqualified owners of the grain. Taking possession of it, and acting on that claim, they sold it forthwith as their own, and did not modify their claim of ownership until February, 1894, when the amended and substituted petitions were filed. It is not averred in the pleadings as amended, nor is it shown by the evidence, that the claim of absolute ownership was made under any mistake. So far as we are informed, it was made with full knowledge of all material facts, and it necessarily involved the conclusion that the contract of sale had been rescinded. The grain was sold as the property of the plaintiffs, without notice of any kind to the grain company or to the intervenor. It is true the right to sell may not have depended upon the giving of notice. But it is the better practice for the vendor who exercises the right of stoppage in transitu to give a notice of an intention to resell the goods, when it is practicable to do so: Holland v. Rea, 48 Mich. 218; Van Brocklen v. Smeallie, 728 140 N. Y. 75; Ullmann v. Kent, 60 Ill. 271; Saladin v. Mitchell, 45 Ill. 85; Hickock v. Hoyt, 33 Conn. 558; Brownlee v. Bolton, 44 Mich. 218; Benjamin on Sales, Bennet's 6th ed., 775; Tiffany on Sales, 228. And the fact that such notice is not given, if unexplained, tends to show an intention to rescind the sale: Redmond v. Smock, 28 Ind. 370. According to the weight of authority, the mere exercise of the right of stoppage in transitu does not operate to rescind the sale; but that conclusion is for the benefit of the vendor, as it may be to his advantage to resell the goods, under proper conditions, and hold the vendee for the loss, if any, sustained by his failure to perform the contract. But until the sale is rescinded, the vendee, or his assignee, has the right to take the goods on payment of the contract price; and, if the vendor does not then deliver them, he is responsible for the damages which result from his failure to do so: Diem v. Koblitz, 49 Ohio St. 41; 34 Am. St. Rep. 531. But when the vendor rescinds the contract of sale the right of the vendee to the goods sold is at an end. The rights and liabilities of the parties to a contract of sale which has been re