delivered the opinion of the court.
There was here but a single cause of action, i. e., the contract for the purchase and sale of these goods. By the terms of that contract the price agreed upon was not due and payable until August 1, 1892. If plaintiffs were defrauded in the making of that contract, they had the choice of two remedies: they might disaffirm the sale and retake the goods, or they might affirm the sale, and, after the term of credit had expired, sue for the agreed price. In the former case they necessarily assert that there was no valid sale; in the latter, that there was a valid sale. These positions are repugnant. If they had taken nothing by the replevin action, or, having taken the goods, or a part of them, had returned them to the defendant, and then had suffered that suit to be dismissed, as was the fact in Stier v. Harms, 152 Ill. 476, they would not have been precluded from bringing this suit, for the reason that the rights and obligations of the parties had not been changed, and therefore a right of action which existed before the replevin suit was commenced ought not to be barred. But it is admitted here, that, in the replevin suit, plaintiffs recovered one-third of the goods in question and converted them to their own use, without compensating the defendant therefor. The facts differentiate this case from the many authorities cited by plaintiffs upon this proposition, namely, that where nothing is taken by the writ, no estoppel arises either by record or in pais.
In Stier v. Harms, supra, the horses of Stier were taken by Harms under a distress warrant against another. Stier brought replevin, but abandoned the action, suffered it to be dismissed, and the property taken under it to be returned to Harms. Stier then brought an action of trespass to recover damages for the wrongful taking of his horses. The Supreme Court sustained his right of recovery upon the grounds that the remedies are consistent, and that the rights and obligations of the parties were not changed by the institution and dismissal of the replevin suit. But they say : “ If there had been a recovery by Stier in the action of replevin, the judgment might be regarded as a bar to an action of trespass to recover the value of the same goods, as held in Karr v. Barstow, 24 Ill. 581.” (p. 479.)
In the case at bar the remedies are inconsistent and repugnant. What is necessarily asserted in following the one must be denied in pursuing the other. Three years after they began the replevin suit, during all which time they held and enjoyed the proceeds of that action, they commenced this assumpsit, in which they claim the right to recover the entire contract price. While there may be two 'remedies upon the same contract, a single claim cannot be split up and made the subject of several suits. Each contract creates but one and only one cause of action. Any other rule would multiply litigation and unduly prejudice debtors. In Farrington v. Payne, 15 Johnson, 432, a bed and bed quilts were taken at the same time and by the same act. The quilts were recovered in an action of trover. The court held that a subsequent action of trover for the bed was barred by the prior suit, as the wrongful act was a single indivisible act, “ and the plaintiff ought not to be permitted to vex the defendants by splitting up his claim for damages into separate suits for each article so seized.”
Where the remedies are inconsistent, the rule, based upon principle and sustained by the authorities, is clearly stated in Morris v. Rexford, 18 N. Y. 557:
“ A vendor of goods, on a sale and delivery upon cash terms, if he fails to get payment, may consider the delivery absolute, and may rely on the responsibility of the vendee, or he may disaffirm and reclaim his property, but he cannot do both of these things. The remedies are not concurrent, and the choice between them once being made, the right to follow the other is forever gone. The law tolerates no such absurdity as the seizure of goods by a person claiming that he has never sold them, and an action by the same person, founded on the sale and delivery of the same goods for the recovery of the price. In peculiar circumstances a party may take either one of ‘these courses, but having made his choice, the right to follow the other is extinct and gone.”
In Kapischki v. Koch, 180 Ill. 44, appellant brought tres-' pass for maliciously suing out a replevin writ. On the trial he admitted that he had brought suit upon the replevin bond and had obtained judgment thereon, and that such judgment had been .satisfied. The Supreme Court denied his right of recovery, saying:
“ While different remedies were available to the appellant, the cause of action was the same and was an entirety, and could not be divided into separate and distinct claims and both remedies pursued. The appellant was required to elect his remedy, and could not split his right to recover damages and maintain two actions against the appellees upon the same cause of action.”
The fact that plaintiffs did not obtain all the goods upon the replevin writ does not give them the right to recover in this action.
“ He could not sue in replevin for part of the goods and bring trespass for the balance taken at the same time. If the officer could not find all the goods mentioned in the plaint, our statute authorized him (plaintiff) to insert a count in trover for the balance.” Karr v. Barstow, 21 Ill. 580.
In Savage v. French, 13 Ill. App. 17, appellee brought trespass for breaking and entering her house. On the trial it was shown that, prior to the institution of this suit, she had brought replevin for the recovery of goods taken and carried away at the time of such entry, and in that action had recovered judgment. It was held that the replevin suit was a bar to the action of trespass. The court says:
“ When there is but a single cause of action, such merger is not merely of the part brought directly in question, in the suit in which the first judgment is recovered, but must necessarily be of the entire cause of action, regardless of the question whether or not the party suing has recovered all which he might have recovered in some other action, which he had the election to bring. Kendall v. Stokes, 3 How. (U. S.) 100. If this were not so, then it would follow that one cause of action may be split into several, especially if founded in tort. But it is well settled that the rule that one cause of action cannot be split into several, is as applicable to actions ex delicto as to those ex contractuj that a single act of trespass or conversion can be the foundation for but one suit for damages.”
The affidavit in the replevin suit was defective because it stated that the goods had not been taken for any tax, etc., “ nor seized under any execution and attachment against the goods and chattels of this affia/nt^ instead of the “ plaintiffs.” But such defect being a mere irregularity did not deprive the court of jurisdiction, for the reason that by sec. 21, ch. 119, R S., “ amendments shall be permitted in actions of replevin, as in other cases at law.” The rule is that, even in the absence of such a statute, an insufficient affidavit in replevin may be amended. Frink v. Flanagan, 1 Gilm. 38. It conclusively follows that, notwithstanding this defect, the Circuit Court had jurisdiction to try the replevin suit.
The offer of plaintiffs to prove that they began the replevin suit without full knowledge of their rights, was imperfect and incomplete. It did not state facts tending to show that they could not have maintained that suit. It went no further than an offer to prove what their agent Donahue “ believed ” at the time he made the affidavit in replevin. In the case of Garrett v. Farwell Co., 199 Ill. 436, cited by plaintiffs, it clearly appeared that Garrett must “ necessarily fail ” in the chancery suit which he brought, and which he dismissed upon learning the facts. Where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected, the rule that thereby he is not estopped from bringing a second and different action, is not in conflict with the rule that, having elected by bringing an action upon one theory, he has no right afterward to sue upon another and an inconsistent theory.
We are of the opinion that the learned trial judge ruled correctly in refusing to hold as law the four propositions presented to him by the plaintiffs. We have considered the further contentions of the plaintiffs, and find no reversible error in them.
The judgment of the Superior Court is affirmed.
Affirmed.