A. B. Campbell as Assignee and T. D. Gibbens, Appellants, vs. The Kauffman Milling Company, Appellee, 42 Fla. 328

Taylor, C. J.: The appellee, the Kauffman Milling Company, a corporation, filed its bill in equity in the Circuit Court of Duval county on the 2nd day of December, 1893, against the appellants alleging in substance therein as follows: That on the 5th day of January, 1893, the said Gibbens was indebted to orator in the sum of $2,655.79 then past due and owing, and also had in his hands certain accounts for flour the property of orator theretofore sold by the said Gibbens as its agent and on its.account.

The items setting forth these flour accounts, and consisting wholly of sales so made by Gibbens of orators flour and on its account to divers persons named therein and for the amounts severally specified therein, aggregating $1,808.26 are set forth in an exhibit to the bill marked A. That on the 5th day of January, 1893, the said Gibbens made an assignment of his property to Campbell, in trust for the benefit of his creditors, the said Campbell paying no consideration therefor other than was implied in his acceptance of the trust thereby created.

The said Campbell accepted the said trust and the said assignment was duly recorded. A copy of the assignment is attached as exhibit B to the bill.

This deed of assignment is in the usual form, conveys all of the property, real, personal and mixed, of the said Gibbens wheresoever the same may be, except such as is exempt from execution under the laws and constitution of Florida, in trust to be converted into- money, and to collect the said rights in action and all sums of money due and owing to- the said Gibbens, and the proceeds and avails thereof to be devoted, after payment of the costs and expenses of the execution of the trust, to the payment in full of all the debts- of the said Gibbens, if the assigned assets shall be sufficient, but if not, then the same to be paid pro rata to his creditors in proportion to the amounts of their respective claims, without preference, the residue of the assets, if any remaining after satisfying all debts in full, to be returned to the said Gibbens.

The said deed of assignment contained also the following general proviso-: “Provided, that nothing herein contained shall be construed to be intended to deprive any person or persons having a valid subsisting lien, mortgage or legal claim on any of the property, hereby assigned, or any legal rights which they may have on that account.” That at the time of said asignment the said Gibbens had no interest whatever in the flour accounts set forth in -exhibit A other than a commission of ten cents per barrel for the flour so sold by him on orator’s account, which interest accrued to- him solely by virtue of his services in selling said flour for orator, and the said Gibbens had no interest in said flour before, the sale thereof, as shown in said exhibit A, nor in the said accounts, the proceeds of said sales, otherwise than in the commission of ten cents per barrel so accruing to him; that said flour had been shipped to the various persons named in said exhibit, either directly from the mills operated by your orator from which the said flour was produced, or had been shipped direct from said mills as the product thereof and the property of your orator, to Jacksonville, Florida, and thence to the said purchasers thereof at the request of said Gibbens, who was acting in reference to such flour and such sales solely as the agent of your orator, so that the flour before the sale, and the proceeds thereof after the said sale, was and contiued to be the property of your orator, subject only to the said claim of Gibbens for said commisions for his services in procuring the said sale thereof; that the said assignment purports on its face to assign all the property of every description belonging to the said Gibbens, and further provides that nothing therein shall be so contsrued as to deprive any one of any legal right then existing to the said property; that the said Campbell as such assignee, took possession of all property embraced in said conveyance, and also took possession of said flour accounts, which were turned over to him by the said Gibbens with said assignment, and had at the, time of the demand hereinafter made upon him, collected a part of said flour accounts as such assignee, and since that demand has collected and converted into money the remainder of said accounts; that on the 23rd day of February, 1893, your orator made demand upon said Campbell for said accounts and the proceeds of such thereof as had been collected, but the, said Campbell refused to turn over to your orator said accounts or the proceeds thereof, and the said Compbell or the said Gibbens to this day has failed and refused to pay the procéeds of said accounts, or the amount thereof, or any part thereof, to your orator and the said Campbell and the said Gibbens have severally failed and refused to pay, though often requested, said sum of $2,655.79, or any part thereof, so that the whole of said sum of $2,655.79 as well as the said proceeds of said flour accounts are, due and owing to' your orator.

The said exhibit A to the bill contains an itemized statement of said flour accounts so demanded of said Campbell; that on the 18th day of May, A.

D. 1893, your orator obtained judgment in this court, on the law side thereof, against the said Gibbens for the said sum of $2,655.79 and also for the sum of said flour accounts so turned over by him to said Campbell', together with the costs of court, and no part thereof or the accounts upon which it was based have been paid, and the said Gibbens has no property out of whiph an execution thereon can be made in whole or in part; that the said Campbell has made no accounting to or with any court whatever as to his said trust, nor did he file, as required by law, in the office of the clerk of the Circuit Court a statement duly verified of all his doings and financial transactions as such assignee.

The said bill prays that the.court of equity take jurisdiction of the administration of the trust created by said assignment, and adjudicate in favor of your orator the special equities herein set up as to said flour accounts as well as its general equities as a creditor of said Gibbens; that the said Campbell be made . to’ account to the said court as to the said trust estate so assigned to him; that said trust be closed, and that he be decreed to pay to your orator and the beneficiaries, severally, of said trust the amount of amounts so ascertained to be due them severally.

There is also a prayer for general relief. The defendant Campbell answered the bill separately, averring that he was a stranger to all and singular the matters and things in the bill contained (except as in said answer stated), and therefore leaves the plaintiff to make such proof as he shall be able to produce.

He admits the making of the assignment as alleged, and his acceptance of the trust thereby created; that among other accounts were a number of flour accounts upon which he has collected various sums, the total amount of which for flour is unknown to' him, no separate account having .been kept of the same, but the manner in which said accounts were acquired by the said Gibbens or what were his relations with the plaintiff, the Kauffman Milling Company, he is ignorant of and therefore can make no statement in regard thereto; that he admits that as such assignee he took possession of the property mentioned in said assignment, including flour accounts, and further admits that complainant made demand upon him as alleged in said bill, and that at the time of such demand this defendant had in his possession no money turned over to him by said Gibbens; that the amount collected since said assignment of flour accounts is as above set forth, tie admits that he refused to pay over to said complainant the said flour accounts for the reason that he saw no evidence from the books of said Gibbens, or elsewhere, sufficient to satisfy him that Gibbens’ relation to the said flour accounts was in any manner different from that of any of the other property turned over to him under said assignmetn, and nothing shown to prove that Gibbens was not the legal owner of said acounts up to the date of said assignment.

He denies that he had made no accounting as required by law as to' his said trust, but, on the contrary, alleges that he had filed in the office of the clerk of the Circuit Court of Duval county, a verified statement of all his doings and financial transactions as such assignee as directed by the statute. The defendant Gibbens also answered the bill separately. He admits that he was indebted to the complainant on the 5th of January, 1893, in the sum of $2,655.79. He admits the making of the assignment to Campbell on January 5th, 1893, as alleged.

He denies that at the time of making said assignment the relations of principal and agent practically existed between the complainant and himself in regard to the flour accounts mentioned in said bill.

That for ten years he received flour from the complainant; that it was shipped to him in his own name and without being consigned to shipper’s order; that he received said flour, paid freight on same and sold it to various parties throughout the State of Florida, billing the same in his own name; that occasionally, when in twenty-five barrel lots and upwards, it was sold in the name of the Kauffman Milling-Company, and separate books were kept for that purpose.

Where the flour was sold in defendant’s name (as about ninety-five per cent, was) the entries of sale and receipts for the same were kept in his own blotter day-book, cash-book and ledger. When sold and issued in the name of the Kauffman Milling Company he did not enter the billing in his set of books at all. and the collection for these bills so made were entirely in the hands of the Kauffman Milling Company. In such cases he made entries in his stock-book only, and were not included in the assignment, as there were no entries of such sales in his books to assignee.

The only accounts assigned were those where shipments were made in his name, and where the amounts due for such sales were due to him.

This was the manner defendant had conducted the business with complainant during the whole period of about ten years, no change being made at any time, all of which was known and acquiesced in by the said Kauffman Milling Company, that he reported to said company from time to time the amount of flour he had sold out of the stock received by him, stating the amount due to said company for which amounts so reported said company made drafts on him varying in time from thirty to sixty days, and these drafts were paid so far as he was able to pay them; that the said Kauffman Milling Company brought suit against him for these same flour accounts on the common law side of this court and garnisheed the said A.

B. Campbell who is alleged to have the, proceeds thereof, and at the Spring term of said court, 1893, said cause came on for trial, at which time the plaintiff on the 18th day of May, 1893, after exhausting every effort to prove the agency of this defendant with reference to these same flour accounts, and failing to do so, dismissed the garnishment proceedings against said Campbell, and added the amount of these flour accounts, by consent, to the judgment theretofore obtained against this defendlant for $2,655.79.

He denies that at the date of the filing of the bill herein the said Campbell had not made an accounting to or with any court as to his said trust, but says, on the contrary, that be had done so in accordance with the statute. After separate replications to these two answers were filed the cause was referred to a master to take and report testimony. With a mass of other testimony reported by the master was the record of a suit in assumpsit instituted by the Kauffman Milling Company ’against T. D. Gibbens in the Circuit Court of Duval county on the 26th day of January, A.

D. 1893, the declaration in which, with attached bill of particulars, is as follows: “In the Circuit Court of the Fourth Judicial Circuit of the State of Florida, in and for Duval county. Kauffman Milling Company, Plaintiff, vs. Truman D. Gibbens, Defendant; A. B. Campbell, Garnishee. Kauffman Milling Company, a corporation organized and existing under and by virtue of the laws of the State of Missouri, by its attorneys A. W. Cockrell & Son, sues the defendant Truman D.

Gibbens, for this, to-wit: For money had and received by the defendant for the use of the plaintiff, for goods sold by the defendant for the plaintiff, as shown by the annexed bill of particulars marked exhibit A, made a part hereof, and plaintiff claims $5,000.” “Bill of Particulars Attached. St. Louis, Jany. 30th, 1893. T. D. Gibbens, Jacksonville, Florida, For amount due on sale flour account, KAUFFMAN MILLING COMPANY. 1892.

Nov. 4 Sales Flour Stub 3075 300.00 26 Sales Flour Stub 3081 200.00 Dec. 7 Sales Flour Stub 3083 44.90 13 Sales Flour Stub 3084 575.40 18 Sales Flour Stub 3085 598.88 23 Sales Flour Stub 3089 523.53 28 Sales Flour Stub 3090 756.07 1893 Jan. 2 Sales Flour Stub........3091 695.20 6 Sales Flour Stub........3093 409.22 4501.10 Less Comms. on Sale Flour . . . 37.05 Flour accounts..............1808.26 1845.31 Balance”.......................$2655.79 This suit resulted on May 3rd, 1893, in a judgment at first for $2,779.09, but this judgment was vacated and set aside by the court on motion of the plaintiff’s attorney and the following final judgment entered in the cause in its stead: Kauffman Milling Company vs.

T. D. Gibbens. Come now the parties by their respective attorneys, and upon motion of plaintiff, the judgment herein rendered May 3, 1893, is hereby vacated and set aside, and by leave of court the plaintiff amends his bill of particulars. And now, in open court, the defendant confesses his indebtedness to the plaintiff in the sum of $4,538.12. It is thereupon considered by the court that the plaintiff, the Kauffman Milling- Company, a corporation organized under the laws of the State of Missouri, have and recover of and from the defendant, Truman D.

Gibbens, the sum of $4,538.12 for damages, besides the sum of $5.49 for its costs in this behalf expended, for which let execution issue?” The proofs in the case established the following state of facts: The Kauffman Milling Company for some time prior to the assignment had an agreement with Gibbens by which said company shipped to Gibbens at Jacksonville, Fla., consignments of flour to be sold by the latter as its agent on a commission of ten cents per barrel.

As Gibbens made sales of such flour he would report to the company and it would thereupon draw upon Gibbens for the amount sold at thirty and sixty days, which drafts Gibbens would pay until he became insolvent. Gibbens in turn collected from the parties to whom he sold the flour, appropriating the moneys thus collected to meeting the drafts drawn upon him by the Milling’ Company, and whenever he made a bad sale to an insolvent purchaser and failed to collect for it the amount thus lost was refunded to him by the Milling Company.

Gibbens sold the flour to his various customers on short time credit, debiting them to himself on his books for the various amounts sold, the Milling Company having nothing to do with the collections from such purchasers, except in cases where Gibbens sold a bill of twenty-five barrels and upwards to a single purchaser, in which cases the sale was made as being directly from the Milling Company to such purchaser, and the collecting in such cases was made directly by the Milling Company.

At the. time of the assignment Gibbens owed to the Milling Company, for flour sold by him for which he had collected the sum of $2,655.79, and had on his books of account divers uncollected accounts against divers parties for flour sold to them, aggregating $1,808.26, which accounts, as before stated, were shown upon his books as being due to Gibbens by the parties against whom they stood. These accounts, with others due to Gibbens, were turned over by him at the time of his assignment to* Campbell, his assignee.

The bill shows that the Milling Company knew on February 23rd, 1893, that such accounts had been turned over to the assignee, Campbell, since it alleges that on that date it made demand on Campbell, the assignee, for the same; yet on May 18th, 1893, it included the amount of said accounts in its judgment at law against Gibbens upon a declaration for money had and received by him for their use. Upon this proof the chancellor below made the following final decree on January 25th, 1895 : ‘‘In the Circuit Court of the Fourth Judicial Circuit of the State of Florida, in and for Duval County. In Chancery.

The Kauffman Milling Co. vs. A. B. Campbell et al. This cause coming on to be heard upon the pleadings and exhibits and the evidence reported by the master, and the documentary evidence proved by the defendants, upon the hearing, was argued by counsel, and submitted for final decree, and the court having duly considered said matters, it is now ordered, adjudged and decreed: 1. That the complainant is entitled to the relief prayed in the bill, both as to the administration by this court of the trust created by the assignment made by the said Truman D. Gibbens to his co-defendant the said A. B.

Campbell set up in the bill, and as to complainant’s equity to the flour acounts, set up as Exhibit “A” to the said bill, hereby adjudicated to exist, as prayed, in said complaint. 2. That this court hereby takes jurisdiction of the administration of said trust, and the equities so adjudicated in favor of complainant. 3. That the defendant A. B. Campbell, file, within ten days from the date hereof, a just, full and true account of all his receipts and disbursements and vouchers for said disbursements, as assignee of said Truman D.

Gibben, duly verified by his affidavit, with a statement of the properties and assets, including accounts remaining in his hands not sold or collected, if any. That in making up his said accounts the said Campbell separate from his general accounts the flour accounts itemized as Exhibit “A,” filed with the bill, and make return unto this court showing what moneys and from' whom and when have been collected on said flour accounts, and also showing a list of the uncollected accounts, if any, itemized in said Exhibit “A.” 4.

It is further adjudged and decreed that the proceeds of the flour accounts as collected be paid to said complainant and the uncollected, accounts be turned over to said complainant, the aggregate amount of the proceeds so paid and the sum of the accounts so> turned over to be applied as a credit on the judgment recovered against the said Truman D. Gibbens as set up in said bill; and the complainant in respect of the balance of its said judgment shall participate pro rata in the proceeds with the other claims to be adjudicated herein of the said general accounting by the said assignee. 5.

That the said Campbell, as such assignee, at once give notice by the publication thereof for four weeks in the Florida Times-Union (daily) to the creditors of Truman D. Gibbens, beneficiaries of the trust created by said assignment, to file their claims duly verified, in this cause on or before the first day of March, 1895, and that in default of such filing the said creditors so in default shall, be barred of any participation in the proceeds of said trust. 6.

That the several creditors so filing claims and the complainant herein be allowed severally to contest the existence or amount of claims, other than the claims of the complainant herein adjudicated, of the said other several creditors, on tor before the 10th day of March, .1895. Done and ordered this Jan. 25th, 1895. R. M. CALL, Judge.” From this decree both defendants to the bill have jointly appealed and assign the decree as error.

Under the circumstances in proof that feature of the decree that requires the assignee Campbell -to pay over to the complainant, the Kauffman Milling Company, to the exclusion of other creditors of T. D. Gibbens, the proceeds of all collections made by him as assignee from the flour acounts turned over to him as assignee by Gibbens, and to deliver up'to said Milling Company all of such flour accounts that he may still have on hand uncollected, and requiring- such collected and uncollected flour accounts to be credited on the common law judgment recovered by said Milling Company against Gibbens, is erroneous.

If, under the contract for the sale of flour existing between the. Milling Company and Gibbens, as interpreted by their course of dealing with each other, the Milling Company was ever at any time, entitled to claim and recover in specie the accounts representing debits to Gibbens on his account books for flour sold by him, the facts show that it has forfeited such right in this case by electing, with full knowledge of all the facts, to pursue an inconsistent remedy from the one sought and granted in this case.

When it discovered the fact that Gibbens had turned over to his assignee uncollected accounts against divers persons representing sales of its flour, if it had the right to possession in specie of such accounts or to the collection and appropriation thereof, to the exclusion of the other creditors of Gibbens, and non constat the deed of assignment from Gibbens to Campbell, it should have by appropriate proceedings against Campbell pursued such accounts and the collections made therefrom specifically from his hands; but, instead thereof,.it voluntarily, with full knowledge that such accounts were in Campbell's hands, took judgment for the amount thereof in an action for money had and received against Campbell’s assignor, Gibbens, for the full amount of such accounts.

After having recovered such judgment against Gibbens it now, by this bill in equity brought against both Gibbens and Campbell, inconsistently seeks to recover in specie from Campbell as assignee the specific accounts themselves and their proceeds that have already been merged in its judgment at law as an adjudicated personal indebtedness against Gibbens.

The two courses of action are inconsistent with e$ich other, for the reason that the Milling Company was not and is not entitled to have both the flour accounts in specie or their proceeds at the same time with judgment at law against Gibbens for the amount represented by such flour accounts.

It wa:' entitled to one or the other, but not to both at the same time; and'having elected to treat the sums represented by said flour accounts as items of personal indebtedness due to it from Gibbens and to take judgment against him therefor, it has elected its remedy and is bound thereby, and is estopped thereby from recovering the account themselves or their specific proceeds from Gibben’s assignee.

The rule governig quasi estoppels by the election of inconsistent positions or remedies is thus stated by Bigelow on Estoppel: “A party can not either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; a man shall not be allowed to approbate and reprobate.

And where a man has an election between several inconsistent courses of action, he will be confined to -that which he first adopts; the election, if made, with knowledge of the facts, is in itself binding; it can not be withdrawn without due consent; it can not be withdrawn though it has not been acted upon by another by any change of position.” Smith v. Hodson, 4 Term. Rep. 211, S. C. 2 Smith Lead. Cas. 1372; Wilson v. Poulter, 2 Strange 859; Priestly v. Fernie, 3 Hurlst. & Colt. 977; Ker v. Wauchope, 3 Eng. Rul. Cas. 326; Smith v. Baker, L. R. 8 C. P. Cas. 350; Brinsmead v. Harrison L. R. 7 C. P.

Cas. 547; Bank of Beloit v. Beale, 34 N. Y. 473; Cheeseman v. Sturges, 9 Bosworth 246; Boots v. Ferguson, 46 Hun. 129; Fowler v. Bowery Sav. Bk. 113 N. Y. 450, 21 N. E. Rep. 172, S. C. 10 Am. St. Rep. 479; Fields v. Bland, 81 N. Y. 239; Rice v. King, 7 Johns. 20; Walsh v. Chesapeake and Ohio Canal Co., 59 Md. 423; Deitz v. Field, 10 Hun Appellate Div. 425; Terry v. Munger, 121 N. Y. 161, 24 N. E. Rep. 272, S. C. 8 L. R. A. 216. The position is taken here that the two appellants Gibbens and Campbell are-not so jointly affected by the decree appealed from as that they can jointly assign errors as. they have done.

We do not agree with this contention. When the Milling Company had elected the inconsistent remedy of suing and recovering judgment at law against Gibbens for money had and received by him upon these flour accounts, such election was a complete bar to his maintenance of this bill against either of the defendants, and, they were., therefore, so jointly affected by the decree as that both can assign error thereon jointly. The decree appealed from is reversed with directions to dismiss the bill. The. appellee to pay the costs of this appeal.