Sullivan v. Ross' Estate

Grant, J.

(after stating the facts). The circuit court was right in directing a verdict for the defendant.

1. The question was res judicata. The questions presented to the circuit court upon a motion to amend are precisely the same as those now presented. The court denied the amendment, whereupon the claimant filed his petition for a mandamus in this court. The questions were fully argued in briefs and orally, and the writ was denied, and the same reasons are now presented against the order of the court that were then presented.

2. Claimant in the former suit chose his remedy, and the law does not now permit him to assert another. Counsel cite several cases in support of the rule, about which there is no dispute, that “a judgment given against a plaintiff on the single ground that he has mistaken his remedy or form of action is no bar to his subsequent suit brought in the proper form.” But these authorities do not cover the present case. Claimant presented his claim in the probate court upon the basis that he had sold his interest in these logs to Ross & Co. as 9,000,000 feet and at $,9 per 1,000. He was defeated, appealed to the circuit, where two trials were had. Whatever may be said about his knowledge of the contract of June 24th upon the hearing in the probate court and upon the first trial in the circuit, he had such knowledge upon the second trial, and still insisted upon a sale, — a claim for which we held there was not the slightest foundation. If upon that trial verdict had been against him, would he have been permitted to bring another suit, based upon the trust relation ? If he had set forth his claim in two counts in the declaration, one based upon the contract of sale, and the other based upon a breach of trust under the contract of June 24th, the court would, upon motion, have compelled him to elect upon which count he would proceed. If he had elected, and been beaten upon the count so elected, would the court then permit him to bring suit upon the other, count? Claimant stands in no better position than he would if he had put two such counts in his declaration. With full knowledge of all the facts, he deliberately chose his remedy, and put the estate to a very large expense .in his attempt to sustain his claim. It is not a case of a mistake in the remedy, but a deliberate choice of remedies. The law does not permit litigants to thus play fast and loose, especially with the estates of dead men, but leaves them to lie upon the beds of their own making.

Judgment affirmed.

The other Justices concurred.