Opinion of the Court.

of a debt sought to be enforced by execution; by the other, specific articles are demanded as the property of the plaintiff. One is to recover damages in respect of the breach of the contract, the other can be maintained only by showing that there was no contract. After choosing between these modes of proceeding, the plaintiffs no longer had an option. By bringing the first action, after knowledge of the fraud practised by Branscom, the plaintiffs waived the right to disaffirm the contract, and the defendants may justly hold them to their election. The principle applied in Foundry Company v. Hersee, 103 N. Y. 26, and Hays v. Midas, 104 N. Y. 602, require this construction, for the present contains the element lacking in those cases, viz., knowledge of the fraud practised by the vendee; and by reason of it the plaintiffs were put to their election.

"It is not at all material to the question that the plaintiffs discontinued the first suit before bringing the present to trial, for it is the fact that the plaintiffs elected this remedy, and acted affirmatively upon that election, that determines the present issue. Taking any steps to enforce the contract was a conclusive election not to rescind it on account of any thing known at the time. After that the option no longer existed, and is of no consequence whether or not the plaintiffs made their choice effective."

In Butler v. Hildreth, 5 Met. (Mass.) 49, it was held that "an assignee of an insolvent debtor," under the insolvent law of 1838, "may affirm a sale of goods made by such debtor for the purpose of delaying or defrauding his creditors, and receive the price of the goods from the vendee. And if such assignee, knowing all the facts of the case, brings an action against the vendee, on a note given by him for the price of the goods, and secures the demand by an attachment of his property, he thereby so far affirms the sale, and waives his right to disaffirm it, that he cannot, by discontinuing such action, and demanding the goods, entitle himself to maintain an action of trover against the vendee, on his refusal to return them."

At page 51 the court said: "It would, we think, be going too far to say that merely demand of the price would be deemed a waiver of his right to avoid the sale and claim the

Opinion of the Court.

goods; because, in many cases, if the price could be obtained, it would be equally beneficial to the creditors, and he would have no farther occasion to pursue the harsher remedy of impeaching the sale. But we think that, if the assignee commences an action against the purchaser for the price, and causes his property to be attached to secure it, this is a sig nificant act, an unequivocal assertion that he does not impeach the sale, but by necessary implication affirms it. It is an act, too, deeply affecting the rights of the purchaser, whilst it is an assertion of his own; and if done with a knowledge of all the facts which ought to influence him in his election, it is conclusive."

In Connihan v. Thompson, 111 Mass. 270, 272, the court said: "The defence of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance and the other upon the disaffirmance of a voidable contract or sale of property. In such cases, any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all. The institution of a suit is such a decisive act; and if its maintenance necessarily involves an election, to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon."

The rule established by these cases is that any decisive act by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and that one of the most unequivocal methods of showing ratification of an agent's act is the bringing of an action based upon such an act.

We cannot accept the contention that Robb and Strong never had any legal standing in the Coppock case, and that the filing of their answer and cross-petition was merely a fortuitous circumstance, which did no injury to Vos and Stix. It is true that when the answer and cross-petition were, by leave of court, withdrawn, the record did not, of itself, disclose any good reason for making them parties, and their

Opinion of the Court.

demurrer was properly sustained. But if they had stood upon their case, as set up in their answer and cross-petition, it would seem that they would have been entitled to relief.

These views justify the decree of the court below, unless the fact that Robb and Strong were trustees calls for a different conclusion.

It is claimed that the interest held by Robb and Strong, in the lands embraced in the deed and lease between them and Loth, was in the nature of an estate in realty, and that, as trustees, they could not themselves, nor by authority given to Kebler, have consented to the sale of such lands in the Gugenheim case. If the nature of their tenure was indeed such that it could not be affected by the sale in the Gugenheim case without their consent, and if, as trustees, they were disabled from consenting, it would seem to follow that the sale in that case was inefficacious, and that the remedy at law would be the sufficient and only one.

But our examination of the deed and lease, read in the light of the testimony of the parties, satisfies us that, as between Robb and Strong and Loth, the transaction was that of a loan of money secured by the covenants of the lease.

Moritz Loth testified, in the present case, that he regarded the transaction as a loan; and Robb and Strong, in the petition filed by them against Vos and Stix, alleged that "the said transactions between them and the said Moritz Loth were in truth and in fact a loan by them to the said Moritz Loth of the sum of $10,000, in consideration whereof the said Moritz Loth conveyed to them the premises herein before described, and they executed to the said Loth the lease herein before described containing the privilege of purchase for the said sum of $10,000," and they accordingly prayed that "their claim shall be declared to be a first and best lien on the premises, and that unless the defendants should pay them the said $10,000, with interest, the said land might be sold for the satisfaction of their claim."

It also appears that, in the Gugenheim case, the petition averred that Robb and Strong, trustees, held the land only as security.

Counsel for Parties.

Accordingly it would seem plain that the rights of Robb and Strong, trustees, were correctly asserted by Kebler in the answer and cross-petition filed by him in the Gugenheim case, and that, assuming that he was authorized to appear, the decree in that case, directing the lands to be sold, and awarding to Robb and Strong, trustees, the said sum of $10,000 and interest out of the proceeds, was fully warranted. It follows that, by the payment into court of the amount of the principal and interest of the money found to be due to Robb and Strong, trustees, and by the conveyance to them by the master of the lands in question, in pursuance of the decree, the purchasers became vested with a fee simple title to said lands. The decree of the court below is accordingly

Affirmed.

MR. JUSTICE JACKSON and MR. JUSTICE WHITE, not having heard the argument, took no part in the decision.

TALBERT v. UNITED STATES.

UNITED STATES v. TALBERT.

APPEALS FROM THE COURT OF CLAIMS.

Nos. 24, 25. Argued and submitted October 11, 12, 1894. Decided October 15, 1894.

A finding of fact by the Court of Claims, where there is nothing in the other findings or elsewhere in the record which authorizes this court to go behind that finding and conclude that there was error in respect thereof, will not be reviewed here.

THE two causes were argued together. The case is stated in the opinion.

Mr. S. S. Henkle for Talbert in both cases.

Mr. Assistant Attorney General Conrad for the United States.

Opinion of the Court.

The court declined to hear him in No. 24, and in No. 25 he submitted on his brief.

THE CHIEF JUSTICE: This was a suit brought in the Court of Claims under an act of Congress entitled "An act for the relief of William Talbert," approved June 30, 1886, and reading as follows: "That the claim of William Talbert, of Montgomery County, Maryland, for the use by the government of his patented improvement for marine railways be, and the same is hereby, referred to the Court of Claims, with authority to take jurisdiction thereof, and to award judg ment thereon, as the merits of the case may demand, according to its value to the government during the existence of such patent." 24 Stat. 822, c. 591.

The court filed findings of fact and a conclusion of law; rendered an opinion, reported in 25 C. Cl. 141; and gave judgment in claimant's favor for $6564.30, from which both parties appealed, but argument is waived by the government on its cross-appeal. Among the findings of fact was the following: "VIII. The value to the government of plaintiff's patented improvement for marine railways during the existence of his patent was $6564.30, being 2 per cent upon. the amount earned by the railway cradle as improved during said period." On this appeal only questions of law can be reviewed, and none such are presented for our consideration. The contention is that the sum awarded was far less than it should have been. But the eighth finding was one of fact, and there is nothing in the other findings or elsewhere in the record which authorizes us to go behind that finding and conclude that there was error in respect thereof.

Judgment affirmed.