Shanahan v. Coburn

87 N.W. 1038, 128 Mich. 692, 1901 Mich. LEXIS 661

• Court: Michigan Supreme Court
• Decided: December 3, 1901
• Status: Published

Opinion

Grant, J.

(after stating the facts). Was this instruction correct? This is the sole question presented. The court, we think, clearly confounded an election of remedies with a mistake in remedies. The court instructed the jury that, as between Joyce and plaintiff, it was a cash transaction, and that no title to the wheat passed to Joyce. It follows that Carson, Craig & Co. had no right of action against the sheriff, who had a complete defense to that action. Upon ascertaining this fact, they were justified in discontinuing that suit, and bringing an action to recover the money paid. McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719); Chaddock v. Tabor, 115 Mich. 27 (72 N. W. 1093); Smith v. Bricker, 86 Iowa, 285 (53 N. W. 250); McNutt v. Hilkins, 80 Hun, 235 (29 N. Y. Supp. 1047). .. It is not a case of election of remedies, but of mistake of remedies.

Judgment reversed, and new trial ordered.

The other Justices concurred.