Opinion by
Mr. Justice Mitchell,
There is not much room for controversy over the law of delivery, or of waiver, as involved in this case, but appellant claims that the charge of the learned judge below so applied the law to the facts that the jury were misled. An examination of the charge as a connected whole fails to sustain the complaint. The expressions assigned for error, and perhaps some others, taken separately and apart from their context might seem to fail in giving due weight to the acts of the parties in regard to the first two rafts, as showing that they, or at least the plaintiffs, did not mean to insist on the strict terms of the contract, and might also have a tendency to lead the jury to suppose that the defense required proof of an express alteration of the contract, and not merely an indulgent or loose enforcement of it, from which a waiver might be implied. But taken in its entirety the charge gave the-law correctly to the jury and at least once in the very words asked by the appellant himself and in connection with the facts relied upon by him as a defense. His second point was that “ if the plaintiffs in pursuance of the contract in evidence sent two rafts of timber to the place designated for delivery, and W. W. O’Neil, Jr. accepted the same, took possession thereof, caused the same to be measured, and commenced manufacturing the same upon his mill; and while he was so manufacturing the same James K. Gardner, by whom and in whose name the contract was made, visited the mill and there learned what had been and was being done with the timber, and made no objection thereto, but afterwards, with full knowledge of the facts, met the said O’Neil in Clarion and, after receiving part payment on account of the timber specified in the contract, ordered the remainder of the said timber to be delivered at the place designated for delivery, and then and there requested the said O’Neil to have his lines ready to secure the rafts when they should arrive, and the said timber was in pursuance of said Gardner’s orders sent to the said place of delivery, and the per[428]*428sons in whose charge it was so sent notified said O’Neil’s employees thereof and took their lines from the rafts and left them without any other provision for their care than such notification; and the said O’Neil’s employees thereupon took charge of the said rafts and secured them with his lines; and the plaintiffs thereafter exercised no care over the same to prevent their loss by floods or other casualties, the jury may find that the plaintiffs waived the provisions of the contract in respect to measurement and' full payment of the hand money, as conditions precedent to delivery and vesting of title, and that the delivery was complete and title vested in O’Neil before the levy.” This was affirmed without qualification. Again when the jury came in and requested further instructions on the subject of waiver the judge, after repeating in substance what he had said before, continued: “We will say in addition to that, you do not require the express proof of a waiver; you can infer a waiver from the acts and conduct and declarations of the parties; but the burden of proof is upon the defendant to satisfy you that those acts and declarations were such as would warrant you in saying that there was a waiver of the original terms of the contract.” If there was any danger that the jury might have been misled by some detached expressions in the previous portions of the charge, it was removed by these clear directions, and the charge as a whole is not open to the criticisms based on the first three assignments of error.
The next and perhaps most serious question is the effect of the notice given by the plaintiffs at the sheriff’s sale. Appellant claims that as it tended to deter bidders and thereby prevent the property from bringing its full value, it should be treated as a binding election to pursue the remedy against the purchasers and operate as an estoppel against plaintiffs’ present demand. This argument is not without apparent equity. It derives some support also from the cases cited by appellant: Vetter’s Appeal, 99 Pa. 52, Edwards’ Appeal, 105 Pa. 103, and Birney’s Appeal, 114 Pa. 519. But these were all cases of' distribution of a fund in court as proceeds of a sheriff’s sale, and really rest on the principle settled in Bush, Bunn & Co.’s Appeal, 65 Pa. 365, that no question can be raised concerning the regularity of the proceedings by which the fund was brought into court, and therefore no party claiming under title adverse [429]*429to the proceedings can share in the distribution. “Thus, if the goods of A are sold upon an execution against B, A cannot be heard to urge his right to the proceeds, however clear and indisputable may be his title to the goods.” And the reason is that the fund represents the title of the defendant in the execution, whether it be good or bad; those who affirm its validity and claim under it are entitled to share in the fund which it produced, but those who dispute it and claim adversely to it must stand on their adverse title and pursue their remedy upon it, either against the sheriff for the trespass or against the purchaser for the property itself. Otherwise they would be claiming and recovering upon adverse and inconsistent rights.
Upon this same ground, that no party can be allowed to recover on repugnant rights, it is held that an action for trespass prosecuted to judgment against the sheriff or the plaintiff in the execution is a bar to assumpsit for the money received from the sale, and vice versa. One is in disaffirmance of the sale and the oilier in affirmance or ratification of it, and they cannot stand together. In Floyd v. Browne, 1 R. 121, it was held that the judgment against the plaintiff in the execution was a bar to a subsequent assumpsit against the sheriff, although the judgment had been fruitless as to execution. This case is much relied on by the appellant, as less strong than the present, and it is argued that the distinction between the institution of a fruitless suit and the giving of a notice, such as was given here, is shadowy in so far as a manifestation of an election is concerned. But the basis of decision in Floyd v. Browne is that by the judgment against the trespasser the title to the goods was divested out of the former owner, the plaintiff, and he could not subsequently maintain any action founded on that title. It was a debatable question in Floyd v. Browne whether the title was fully divested by a judgment without satisfaction, and in Fox v. Northern Liberties, 3 W. & S. 103, it was said that the authorities on the subject are conflicting. But in Merrick’s Estate, 5 W. & S. 9, it was said that it was no longer an open question in this state: “ A judgment for the value of a chattel is placed on the same footing as an actual satisfaction, and consequently divests the plaintiff’s title.”
But while it is thus held that a judgment is per se a bar, no case has been found which holds that anything less than a judg[430]*430ment shall have that effect. The technical reason of divesting the title does not apply to a notice such as was given in the present case, and we should be taking a long and doubtful step in advance of our previous decisions by holding that such notice should operate as an estoppel. It is said by Sharswood, J., in Bush, Bunn & Co.’s Appeal, 65 Pa. 363, already cited, that “it is every day’s practice for such an assignee or vendee under a bill of sale ” (i. e.
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Opinion by
Mr. Justice Mitchell,
There is not much room for controversy over the law of delivery, or of waiver, as involved in this case, but appellant claims that the charge of the learned judge below so applied the law to the facts that the jury were misled. An examination of the charge as a connected whole fails to sustain the complaint. The expressions assigned for error, and perhaps some others, taken separately and apart from their context might seem to fail in giving due weight to the acts of the parties in regard to the first two rafts, as showing that they, or at least the plaintiffs, did not mean to insist on the strict terms of the contract, and might also have a tendency to lead the jury to suppose that the defense required proof of an express alteration of the contract, and not merely an indulgent or loose enforcement of it, from which a waiver might be implied. But taken in its entirety the charge gave the-law correctly to the jury and at least once in the very words asked by the appellant himself and in connection with the facts relied upon by him as a defense. His second point was that “ if the plaintiffs in pursuance of the contract in evidence sent two rafts of timber to the place designated for delivery, and W. W. O’Neil, Jr. accepted the same, took possession thereof, caused the same to be measured, and commenced manufacturing the same upon his mill; and while he was so manufacturing the same James K. Gardner, by whom and in whose name the contract was made, visited the mill and there learned what had been and was being done with the timber, and made no objection thereto, but afterwards, with full knowledge of the facts, met the said O’Neil in Clarion and, after receiving part payment on account of the timber specified in the contract, ordered the remainder of the said timber to be delivered at the place designated for delivery, and then and there requested the said O’Neil to have his lines ready to secure the rafts when they should arrive, and the said timber was in pursuance of said Gardner’s orders sent to the said place of delivery, and the per[428]*428sons in whose charge it was so sent notified said O’Neil’s employees thereof and took their lines from the rafts and left them without any other provision for their care than such notification; and the said O’Neil’s employees thereupon took charge of the said rafts and secured them with his lines; and the plaintiffs thereafter exercised no care over the same to prevent their loss by floods or other casualties, the jury may find that the plaintiffs waived the provisions of the contract in respect to measurement and' full payment of the hand money, as conditions precedent to delivery and vesting of title, and that the delivery was complete and title vested in O’Neil before the levy.” This was affirmed without qualification. Again when the jury came in and requested further instructions on the subject of waiver the judge, after repeating in substance what he had said before, continued: “We will say in addition to that, you do not require the express proof of a waiver; you can infer a waiver from the acts and conduct and declarations of the parties; but the burden of proof is upon the defendant to satisfy you that those acts and declarations were such as would warrant you in saying that there was a waiver of the original terms of the contract.” If there was any danger that the jury might have been misled by some detached expressions in the previous portions of the charge, it was removed by these clear directions, and the charge as a whole is not open to the criticisms based on the first three assignments of error.
The next and perhaps most serious question is the effect of the notice given by the plaintiffs at the sheriff’s sale. Appellant claims that as it tended to deter bidders and thereby prevent the property from bringing its full value, it should be treated as a binding election to pursue the remedy against the purchasers and operate as an estoppel against plaintiffs’ present demand. This argument is not without apparent equity. It derives some support also from the cases cited by appellant: Vetter’s Appeal, 99 Pa. 52, Edwards’ Appeal, 105 Pa. 103, and Birney’s Appeal, 114 Pa. 519. But these were all cases of' distribution of a fund in court as proceeds of a sheriff’s sale, and really rest on the principle settled in Bush, Bunn & Co.’s Appeal, 65 Pa. 365, that no question can be raised concerning the regularity of the proceedings by which the fund was brought into court, and therefore no party claiming under title adverse [429]*429to the proceedings can share in the distribution. “Thus, if the goods of A are sold upon an execution against B, A cannot be heard to urge his right to the proceeds, however clear and indisputable may be his title to the goods.” And the reason is that the fund represents the title of the defendant in the execution, whether it be good or bad; those who affirm its validity and claim under it are entitled to share in the fund which it produced, but those who dispute it and claim adversely to it must stand on their adverse title and pursue their remedy upon it, either against the sheriff for the trespass or against the purchaser for the property itself. Otherwise they would be claiming and recovering upon adverse and inconsistent rights.
Upon this same ground, that no party can be allowed to recover on repugnant rights, it is held that an action for trespass prosecuted to judgment against the sheriff or the plaintiff in the execution is a bar to assumpsit for the money received from the sale, and vice versa. One is in disaffirmance of the sale and the oilier in affirmance or ratification of it, and they cannot stand together. In Floyd v. Browne, 1 R. 121, it was held that the judgment against the plaintiff in the execution was a bar to a subsequent assumpsit against the sheriff, although the judgment had been fruitless as to execution. This case is much relied on by the appellant, as less strong than the present, and it is argued that the distinction between the institution of a fruitless suit and the giving of a notice, such as was given here, is shadowy in so far as a manifestation of an election is concerned. But the basis of decision in Floyd v. Browne is that by the judgment against the trespasser the title to the goods was divested out of the former owner, the plaintiff, and he could not subsequently maintain any action founded on that title. It was a debatable question in Floyd v. Browne whether the title was fully divested by a judgment without satisfaction, and in Fox v. Northern Liberties, 3 W. & S. 103, it was said that the authorities on the subject are conflicting. But in Merrick’s Estate, 5 W. & S. 9, it was said that it was no longer an open question in this state: “ A judgment for the value of a chattel is placed on the same footing as an actual satisfaction, and consequently divests the plaintiff’s title.”
But while it is thus held that a judgment is per se a bar, no case has been found which holds that anything less than a judg[430]*430ment shall have that effect. The technical reason of divesting the title does not apply to a notice such as was given in the present case, and we should be taking a long and doubtful step in advance of our previous decisions by holding that such notice should operate as an estoppel. It is said by Sharswood, J., in Bush, Bunn & Co.’s Appeal, 65 Pa. 363, already cited, that “it is every day’s practice for such an assignee or vendee under a bill of sale ” (i. e. the claimant of an adverse and superior title) “to give notice to the sheriff and at the sale, and pursue his remedy either by an action of trespass against the sheriff, or of trover or replevin against his vendee.” While the effect of such notice is to deter bidders, and thus lead to an apparent hardship on the sheriff in preventing his receiving the full value of the goods, and yet holding him subsequently liable to the same party for such value, yet there is a countervailing equity in the claimant. In the eye of the law he is being wronged by the sale of his goods as the property of another. The law gives him a choice of remedies, either to maintain his title against the goods themselves in the hands of the purchaser or to let the goods go and hold the sheriff for the trespass. One or other of these remedies may be preferable according to the circumstances. If there be a single purchaser at a very inadequate price the owner may elect to pursue the goods, while if the purchasers are numerous and prices vary, so as to involve many suits and perhaps difficulty of proof of values, he may decide to abandon the goods and seek damages for the trespass. Why should he be compelled to make his election before he can have full knowledge of the facts ? o No rule of law yet declared has required him to do so, and we do not think the equity against him is clear enough to justify us in giving a new and perhaps dangerous effect to what has been characterized by this court as “ every day’s practice.”
Of course, a notice not given bona fide in furtherance of a genuine claim would stand on a different basis. This was one of the grounds of decision in Birney’s Appeal, 114 Pa. 519, already cited, where it was said by the present Chief Justice, “ in the absence of any explanation it is not unreasonable to infer that his purpose was to secure the property at an undervalue and then, to the detriment of the defendant in the execution as well as his creditors, claim the greater part of the [431]*431proceeds of the sale as applicable to his own lien. To sanction snch a transaction would be to encourage the practice of deception, trickery and fraud.” There is no such element in the present case. We hold therefore that the plaintiffs were not estopped from this action by the notice given at the sheriff’s sale that the goods belonged to them and the purchaser would take*no title:
But although the appellant’s contention as to the meastire of damages was broader than we can sustain, yet the facts show that the jury were given too large a standard for their verdict. If the plaintiffs had bought in the lumber, and thus been restored to the possession of their property, their damages would have been, not its full value, but the expense and loss they had been put to in getting it back, including any loss by its seizure and detention, the price they had paid the sheriff, etc. But the uncontroverted testimony shows that plaintiff’s agent bought in four of the five rafts sold, under such circumstances as made him a purchaser for them. Gardner, the agent, was in charge of the proceedings for his employers. One of the plaintiffs, Mr. Hyde, testified that Gardner was authorized to employ counsel to look after plaintiff’s interests, including the giving of notice at the sale. Gardner himself testified that he reported his purchase to his employers and they made no objection : “ It was perfectly satisfactory with the Portland Lumber Company, as they had adopted their plan of defense. Q. They had adopted their form of procedure? . A. Yes.” It is entirely clear therefore that in law the purchase by Gardner was a purchase by plaintiffs. As between him and themselves plaintiffs might have waived their rights and ratified his act for his benefit. But they could not do so to- the prejudice of defendant. Having been restored to the legal possession of their property, the measure of their damages was fixed by the loss and expense they had been put to up to that time, and they could not enlarge the defendant’s liability by any subsequent act of their own. The jury should have been so instructed. We must therefore sustain the fifth assignment of error.
Judgment reversed and venire de novo awarded.