I dissent. I have no quarrel with the general rule of law as stated in the prevailing opinion, but I think it is not applicable to the undisputed evidence in this case and the findings of the trial court based thereon. Plaintiff could, if he chose, accept Dalton’s check, either certified or uncertified, in absolute and final payment and discharge of the Barton mortgage, and if he did so his claim must be based upon the check alone. The trial court has found that he did this, and the evidence abundantly sustains it.
On the second of April, when Dalton called to pay the mortgage, he asked the plaintiff, “ ‘ How do you want the money % Do you want it in cash or a certified check ? ’ He said, i A certified check will do.’” The next day he called, prepared to deliver the check and receive the satisfaction piece of the mortgage. The satisfaction piece was not ready and plaintiff asked to have the matter postponed until Monday, April fourth. If he had been ready with his satisfaction piece on Saturday, April second, the check would undoubtedly have been paid before the failure of the bank upon which it was drawn, and the difficulty which here confronts us would not have arisen. But on the fourth, when Dalton called upon the plaintiff and téndered him the check drawn to the order of the mortgagee, Lillian B. Barton, and duly certified, plaintiff said, “ That check is of no use to me, I don’t want it,” and Dalton then said, “Very well, I will give you the cash for it. Are you ready with your satisfaction piece ? ” And plaintiff replied, “ I don’t want that [the cash], I want it [the check] to my order.” Dalton then said, “ Very well, I will draw it to your order as attorney. Let me have pen and ink, ” and he then interlined over the name *766of Lillian B. Barton the words “ or Henry J. Davenport attorney/’ took the check to the bank, had them note the alteration on the certification book, then returned to plaintiff’s office and gave him the check and received the satisfaction piece of the bond and mortgage.
The reason as given why plaintiff did not care to accept a check drawn to the order of Lillian B. Barton only was that he desired to deduct from the amount received certain claims of his own for fees. But still he could have had the cash and made the deduction, instead of the check, and he refused the former and requested the latter. As appears again from the evidence, when the check was presented to him on the second of April, drawn to the order of Lillian B. Barton, he said, “That is of no use to me, I don’t want that,” and Dalton replied, “ Well, I will go and get the money for it.” There is no question that at that time he could have gone to the bank and obtained the money. But the plaintiff refused, and said, “No, that is not what I want. I want it [the. check] drawn to my order.”
The fact that Davenport sued Dalton on the check and recovered judgment is conclusive evidence that he accepted the check as full and final payment of the mortgage, otherwise the check was without consideration and he could maintain no action upon it. Suing upon the check was a remedy inconsistent with the claim now asserted by the plaintiff, and plaintiff is bound by the election then made.
Rich, J., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.