Ormsby v. Dearborn

116 Mass. 386, 1874 Mass. LEXIS 122

• Court: Massachusetts Supreme Judicial Court
• Decided: December 9, 1874
• Status: Published

Opinion

Morton, J.

The goods replevied were delivered by the plaintiffs to Friselle, and the issue in the case was, whether they were sold to him, or intrusted to him as the plaintiffs’ agent. Friselle having been adjudicated a bankrupt, his assignee defends this action for the benefit of his creditors. It appeared at the trial that the plaintiffs have proved an account against the estate of the bankrupt, which account includes the price of the goods replevied, as goods sold and delivered to him.

The remedy thus elected by the plaintiffs is utterly inconsistent with their claim in this suit. The two cannot stand together. If they could, the plaintiffs might receive the whole or a part of the price of the goods under the proceedings in bankruptcy, and by this suit regain and hold the goods themselves.

As the plaintiffs have elected to prove their debt for the price of the goods, and have not withdrawn the proof before this suit was brought, the learned judge who presided at the trial should have ruled, as requested by the defendant, that such proof was a bar to this action. See Cook v. Farrington, 104 Mass. 212.

Exceptions sustained.