I concur generally in the views of Mr. Justice McFarland, but would add an additional suggestion. Though the concession is opposed to all the authorities, let it be conceded that the constable took this check from Ambrose as agent or trustee of the plaintiff — an act clearly beyond the scope of his authority. Upon this concession, the plaintiff then had either one of two *Page 699 courses open to him. He could ratify the constable's act and take the check, or he could repudiate it and hold him liable for the money he should have received at the sale. Here plaintiff elected to follow the latter course, and recovered judgment against the constable for the full amount of the unpaid purchase price. Having done so, he lost all rights he may have had to the check, and forever afterward it became the property of the constable.
The plaintiff had no right to sue the constable for the unpaid purchase price, and also claim title to the check. These two remedies were absolutely inconsistent with each other, and the adoption of one was a bar to the prosecution of the other. If the plaintiff had taken an assignment of the check from the constable in the first instance, he could not thereafter have sued the constable for the unpaid purchase price; and having first sued the constable for that purchase price, he never thereafter was entitled to an assignment of the check. Conceding that when the first action was brought he did not know that the check was in existence, still that fact is immaterial, for he did know that the purchase price had not been paid.
The foregoing views we believe to be supported by the language of the principal opinion, wherein it is said: "This check was not cash, and the judgment debtor could not have been compelled to take it. But that objection could have been waived, and if waived it would have been the duty of Saunders under the statute to transfer the check. . . . . Equity deems that to be done which ought to be done. Saunders ought to have sued on the check, or to have assigned it to the plaintiff so that he could sue. Not having sued himself he will be deemed to have assigned his right of action to plaintiff. Of this view he cannot complain, and still less can the appellant complain. The necessary privity of contract in this case is worked out by operation of law." Conceding the foregoing quotation to contain a sound exposition of the law, then the plaintiff, after having brought his action against the constable for the full amount of the purchase price and recovered judgment, would never be declared by the law to be the equitable assignee of the check. It was thereafter the property of the constable, and the plaintiff had no right or title in it. This action cannot be maintained for a moment unless upon the theory that it *Page 700 is an action upon the check. The statutes of limitation absolutely forbid it. The check being the property of the constable the action must fall.