The trustee quotes from 35 Cyc. 696, as follows:

The seller cannot resort to more than one remedy, but must elect which he will pursue; and generally an action and recovery of a judgment for the price operates as a confirmation of the sale, precluding the seller from maintaining an action to recover the goods."

On the same page from which this language is quoted are cited in support thereof cases from several states; but among the states referred to as holding contra is included Michigan. The trustee cites and relies upon the case of Button v. Trader, 75 Mich. 295, 42 N. W. 834. In this case one Strub and one Donally were joint owners of certain personal property. Donally sold his one-half interest to Strub, upon conditional sale with reservation of title. Thereafter Strub undertook to sell to the defendants the whole of such property, claiming to be the owner thereof. Strub not having paid Donally for his one-half interest, the latter brought suit against the former, and made the vendees from Strub garnishee defendants.

The vendees paid to Donally the balance of the purchase price, which they had agreed to pay to Strub, and after such payment Donally recognized them as the sole owners of the property. Subsequently the assignee of Strub brought this action against the latter's vendees to recover the amount thus paid by the vendees to Donally. Among other things; the court said:

"Donally, when he found the property passed by Strub as his own to the defendants, if his claim as testified to by him was correct, had two courses open to him to pursue. He could have taken measures to recover his property of the defendants, or he could have affirmed the sale of Strub to them, and looked to Strub for the value of his property. He chose the latter course. He elected to pursue his remedy against Strub, and now has a judgment against him, not only for the full amount of his interest in the property, but for all that Strub then owed him on any account. Having thus elected to confirm the sale of the property by Strub to the defendants, and having recovered a judgment for the value of his interest in the same against Strub, which is now in force, the property was thereby secured in the defendants and the consideration for the note became a good one. Having elected to place his remedy against Strub, he cannot now turn round, repudiate such election, and maintain a claim to the property."

The decision in this case is clearly inapplicable to the facts in the present case.

The trustee refers to, but seeks to distinguish, the case of Canadian Typograph Co. v. Macgurn, 119 Mich. 534, 78 N. W. 542. In this case the defendant bought a bicycle from the plaintiff under a contract reserving the title to the property in the plaintiff until such bicycle had been paid for. The plaintiff rendered a statement of account to the defendant, and afterwards began an action in assumpsit in a Canadian court based upon such account. The summons was served in Detroit, and a judgment was taken on such summons. It was admitted that this foreign judgment had no force in this country, and also that any property of the defendant in Canada might be seized upon such judg ment. Afterwards plaintiff brought this action of replevin against the defendant for the recovery of possession of this property. From a judgment on a verdict directed in favor of the plaintiff, the defendant appealed, assigning error upon the refusal to direct a verdict for the

defendant. In affirming the judgment, the Michigan Supreme Court

said:

"Counsel contend that, by bringing assumpsit, the plaintiff elected its remedy, and cannot now resort to replevin. The contract binds the defendant to purchase, and provides for a settlement. It reserves the title in the plaintiff until the settlement is fully satisfied. The record shows an account rendered, though it is not clear that an adjustment of accounts was had; but, whether there was or not, the contract reserves title until the same is satisfied. In the case of Fuller v. Byrne, 102 Mich. 461 [60 N. W. 980], the court held that the fact that a personal judgment was rendered was not sufficient to pass the title. In that case the contract provides that 'the said instrument [a piano] is and shall remain the property of Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is paid in full.' The language of the contract in the present case is not the same, but we think that it evinces an intention that the title should not pass until the wheel should be paid for. Again, if the doctrine of merger can be said to have any application in such cases, it may be doubted whether anything less than a judgment in a case where the plaintiff has a full and complete opportunity to recover his whole demand against his debtor will suffice. Thus, in the case of Toby v. Brown, 11 Ark. 308, it was held that a judgment against a steamboat, that being a judgment in rem, was not enforceable against the property of the owners, if unsatisfied, and could not be pleaded in bar to a subsequent action."

The trustee quotes the following language from that opinion, as the concluding sentence of the court:

"Furthermore, it is commonly held that a former judgment, unsatisfied, does not merge the original cause of action."

An examination, however, of the opinion, shows that immediately after the sentence just quoted the court said:

"But we need not decide this question, as we think the case within the rule of Fuller v. Byrne, supra."

I am of the opinion that the decision in Canadian Typograph Co. v. Macgurn, controls the present case, and is authority for the ruling and order of the referee.

It is urged that the case of Fuller v. Byrne, cited in the opinion just quoted, is distinguishable from the present case, and is not authority for the decision in Canadian Typograph Co. v. Macgurn, supra.

I cannot, of course, hold that the Michigan Supreme Court erred in basing if it did, its decision in Canadian Typograph Co. v. Macgurn, upon Fuller v. Byrne, even if I were disposed to do so. I think, however, that the court was justified in citing the last mentioned case. In that case plaintiffs had delivered to one Marquardt a piano under a conditional contract of sale containing the following clause:

"The said instrument * is and shall remain the property of [said] Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is paid in full."

This piano was seized and taken from the possession of the conditional sale purchaser, on an execution, and plaintiffs brought this action of replevin against the sheriff to recover possession of such piano. It appeared that before the sheriff had levied his execution, the plaintiffs had brought suit against Marquardt and obtained personal judgment for the amount due on the contract, and it was contended that

plaintiffs had thereby relinquished their right to recover possession of this property. The trial court directed judgment for plaintiffs and the defendants appealed. In affirming the judgment, the Supreme Court said:

"The court below was correct in so finding. The plaintiffs and Marquardt had entered into a contract by which the title to the property was to remain in the vendors until the ‘amounts, and interest thereon, and any judgment rendered thereon, is paid in full.' Under this contract the vendors had the right to obtain judgment against the vendee for the amount due, and interest thereon, and the title was not to pass until such judgment was paid. There is no intention shown here to release the lien or pass the title. The mere fact of personal judgment was not, under the contract, to release the lien or pass title, until judgment paid. See Kirkwood v. Hoxie, 95 Mich, 66 [54 N. W. 720, 35 Am. St. Rep. 549] and cases there cited."

In the case of Kirkwood v. Hoxie, 95 Mich. 62, 54 N. W. 720, 35 Am. St. Rep. 549, referred to in the opinion last quoted, it was held that the mere recovery of a personal judgment by the holder of a mechanic's lien against the owner of the premises covered by such lien, for the amount due by the latter to the former, and secured by such lien, does not necessarily constitute a waiver of the right to enforce such lien, the court saying among other things:

"We may next inquire whether the defendants have waived their lien by taking this personal judgment. A lien once established. the burden is upon the owner of the estate charged to show its relinquishment, and, while this may be inferred from circumstances, it may also be rebutted. It is said by at least one author that 'the question of waiver is always one of intention.' Adams, Eq. 128, 129. If so, it is necessarily one of fact. Cordova v. Hood, 17 Wall. 1-9 [21 L. Ed. 587]; Coit v. Fougera, 36 Barb. [N. Y.] 195. In this case there is nothing to show such intention. True, a personal judgment was taken, but it was accompanied by acts which clearly show an intention to preserve, rather than to relinquish, the lien; and no effort has been made to collect the judgment by the ordinary process of the court. It cannot be successfully contended that the taking of the judgment, alone, would have such effect."

It is finally insisted that the order complained of is contrary to the rule announced in the case of Atkinson v. Japink, 186 Mich. 336, 152 N. W. 1079, which it is urged controls this case. The facts in that case are thus stated in the opinion of the court:

"Plaintiff sold an automobile to defendant for $650. One hundred and forty dollars was paid in cash, and two notes for $185 and $325, respectively, were executed by defendant, payable to plaintiff. Each note reserved title to the automobile in plaintiff until it was paid, with the right to declare the note due and take possession of the car at any time plaintiff deemed himself inse cure; to sell at public or private sale, and indorse the amount received upon the note. Plaintiff sold the notes, indorsing them, but not to the same purchaser. The smaller note falling due, plaintiff took it up from the purchasing bank, asked defendant to pay it, who refused to do so."

Plaintiff thereupon brought an action of replevin against the purchaser to recover possession of this automobile. The trial court directed a verdict for plaintiff, and defendant appealed to the Supreme Court, contending, among other things, that by transfer of his note any title which plaintiff might have had by virtue of such note in the machine passed from him to the defendant, as buyer of the machine. In affirming the judgment, the Supreme Court used the following language:

"The idea of a lien reserved by the vendor is not out of harmony with the idea of an assignment of the lien, with the assignment, or sale, of the notes; a passing of the security as a right appertaining to the choses in action. It is reasonable, therefore, to say, and the conclusion is abundantly supported by authority, that whoever held one of the notes as owner possessed also the right, upon default in payment of the note, to possession of the car. What plaintiff will do with the car we cannot know. Treating the sale of each note as an assignment pro tanto of the security, it is to be presumed that he will not invade any right of the holder of the other note. But I think the defendant was not entitled, as against either note holder, to retain possession of the car. As to him it can be sold but once, and the sum received applied upon his debt."

It is readily apparent that this case is not in point here, and that its doctrine is not inconsistent with the rule announced and applied in the decisions previously quoted.

It will, moreover, be noted that in the present case, petitioner did not reduce to judgment, or commence an action for the recovery of the unpaid purchase price of these motors, but sued and recovered judgment on only two of the twenty-four notes received. It certainly could not be contended that the payment of these two notes would have resulted in the transfer of the title to such motors to the bankrupt, and I am of the opinion that the recovery of judgment upon such notes, under the circumstances disclosed, had no such effect. There is nothing to indicate an intention on the part of petitioner to waive his right to reclaim this property.

For the reasons stated, the order of the referee must be, and it hereby is, affirmed.

PENN MUT. LIFE INS. CO. v. HENDERSON et al

(District Court, N. D. Florida. August 18, 1917.)

INTERPLEADER 21-JURISDICTION OF FEDERAL COURTS-CONSTRUCTION OF STATUTE.

Act Feb. 22, 1917, c. 113, 39 Stat. 929, gives the federal District Courts original jurisdiction of suits of interpleader by insurance companies when it is made to appear that one or more bona fide claimants under a policy reside within the jurisdiction of the court, and that two or more persons, citizens of different states, are adverse claimants, "and such insurance company deposits the amount of the insurance with the clerk of the court to abide the judgment thereof." "Provided that in all cases where a beneficiary is named in the policy, or where the same has been assigned and written notice thereof shall have been given to the company the bill of interpleader shall be filed in the district where the beneficiary may reside." Held, that the deposit of the amount of the insurance with the clerk is a condition precedent to the exercise by the court of the jurisdiction granted. Semble that the proviso fixes the venue in the district of the residence of the beneficiary named in the policy or, in case of assignment, of the assignee.

In Equity. Suit of interpleader by the Penn Mutual Life Insurance Company against Winifred Henderson and others. On motion. to dismiss bill. Motion granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Sterling A. Wood, of Birmingham, Ala., and Watson & Pasco, of Pensacola, Fla., for the motion.

Price & Carter, of Marianna, Fla., opposed.

SHEPPARD, District Judge. The Penn Mutual Life Insurance Company, a corporation of Pennsylvania, seeking to take the benefits of the provisions of chapter 113, Laws of Congress, February 22, 1917 (39 Stat. 929), filed its bill of interpleader against Winifred Henderson individually, and Winifred Henderson, trustee, citizens and residents within the jurisdiction of the court, and against the Rt. Rev. Edward P. Allen (executor of Otto Joseph Dus, deceased), a citizen and resident of Jefferson county, Ala.

It is disclosed by the bill, among other things for grounds of jurisdiction, that Winifred Henderson is the assignee of a certain insurance policy on the life of Otto Joseph Dus, deceased; that the policy had been assigned to the defendant Henderson June 1, 1914, and written notice thereof had been duly accepted by the plaintiff, recognizing the assignee as beneficiary in the policy according to the rules of the company. It is further shown that Otto Joseph Dus died testate February 28, 1916, naming the defendant Allen executor of his last will and testament. The bill then admits liability to one or the other claimants, and disclaims any interest in the fund except that of mere stakeholder of the amount of the policy for the rightful beneficiary, and avers that Winifred Henderson had instituted her action against plaintiff in the circuit court of Escambia county, Fla., upon the policy and assignment; that said Allen had begun a suit as executor against plaintiff in the circuit court of Jefferson county, Ala. The bill then tenders the amount of the policy, $1,089.95, and prays that plaintiff be permitted to deposit said amount into the registry of the court for the party who may be entitled thereto, and that the defendant Henderson and defendant Allen may be enjoined, respectively from further prosecuting their said suits in the state courts of Florida and Alabama, with the usual prayer for process. Suffice it to say, the bill meets the essential requisites of the statute for jurisdiction and of the relief sought. The usual process in chancery issued and temporary injunctions were granted, restraining the defendants from further prosecuting their said actions in the state courts. There was, however, no deposit with the clerk according to the tender of the bill. Three days after filing its bill of interpleader in this jurisdiction, plaintiff exhibited in the District Court of the United States for the Northern District of Alabama, Southern Division, a similar bill, and for like purpose, against the same defendants, making the deposit in that court as tendered. Subpoenas and restraining orders were likewise issued from that jurisdiction and served upon the defendants in both districts.

The objection to the jurisdiction of the court occurs on a motion to dismiss, one ground of which is that the court is without jurisdiction because plaintiff made no deposit in the clerk's office as by the law required. In view of the conclusion reached it will not be necessary to notice other grounds assailing the constitutionality of the act. Whether or not it is within the power of Congress to the extent here attempted, it is clear the intention of the legislative department was to enlarge