Singer v. Millard

177 N.W. 893, 171 Wis. 637, 1920 Wisc. LEXIS 161

Opinion

Rosenberry, J.

The plaintiff contends that under Wiedenbeck-Dobelin Co. v. Anderson, 168 Wis. 212, 169 N. W. 615, and Defiance M. Works v. Gill, 170 Wis. 477, 175 N. W. 940, the plaintiff’s remedies were cumulative, and that he therefore had a right to pursue either or both, and that his conduct in taking possession of the property after the default of Cook did not amount to a rescission of the contract.

In the Wiedenbeck-Dobelin Case the vendor, under the conditional contract of sale, brought suit upon the notes, thereby affirming the contract. It then proceeded to satisfy its claim out of the property covered by the contract. This did not constitute a rescission, and distinguishes that case and other cases cited from the present case. The plaintiff in this case did not assert his right to satisfy the unpaid purchase price out of the property, but took possession of the entire property, treating it as his own, and in addition to that sought to enforce payment of the purchase price. These remedies are inconsistent. Taking possession of the property and selling it and applying the proceeds upon the indebtedness is one thing. Taking possession of the property and treating it as one’s own and as if the contract had never existed, is quite another thing. Tufts v. Brace, 103 Wis. 341, 79 N. W. 414. See, also, note in L. R. A. 1916A, 915.

By the Court. — Judgment affirmed.