What constitutes an election between the right to recover damages and the right to restitution is a question not free from difficulty. An unsatisfied demand for the proceeds of a conversion, either upon the converter,1 or upon a court into which the money has been paid,2 is held not to be conclusive. But the acceptance, by the owner of goods wrongfully sold, of the proceeds of the sale, is an election.3 The prosecution of one remedial right to judgment on the merits - whether in favor of the plaintiff or the defendant - is likewise an election.4 Nemo debet bis vexari pro eadem causa. The effect of the commencement of an action, either in tort or assumpsit, is disputed, but by what is believed to be the weight of authority the commencement of an action in a court of competent jurisdiction is decisive.5 The conflict of authority rests upon a difference of opinion as to the essential nature of an election. By some courts, apparently, it is conceived to be merely an "unequivocal act," i.e. an act consistent with a determination to pursue one remedy but inconsistent with a determination to pursue the other. In Scarf v. Jardine,6 for example, Lord Blackburn said:
Dec. 627. But see, contra, Old Dominion, etc., Co. v. Bigelow, 1909, 203 Mass. 159, 216-19; 89 N. E. 193; Nelson p. Illinois, etc., R. Co. 1910, 98 Miss. 295; 53 So. 619; 31 L. R. A. (N. S.) 689.
1 See Portland Gold, etc., Mining Co. v. Stratton's Independence, 1907, 158 Fed. 63; 85 C. C. A. 393; 16 L. R. A. (N. S.) 677; Marsh v. Pier, 1833, 4 Rawle (Pa.) 273; 26 Am. Dec. 131.
2 But see Westbrook v. Mize, 1886, 35 Kan. 299; 10 Pac. 881, (satisfied judgment against one joint tort-feasor - whether for all or part of the converted property - bar to further action against the other).
3 Cooper v. Shepherd, 1846, 3 C. B. 266; Ayer v. Ashmead, 1863, 31 Conn. 447; 83 Am. Dec. 154; McCoy v. Louisville, etc., R. Co., 1905, 146 Ala. 333; 40 So. 106.
"The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act - I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way - the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election." 1
1 Valpy v. Sanders, 1848, 5 C. B. 886; Baker v. Hutchinson, 1906, 147 Ala. 636; 41 So. 809, 811.
2 Morris v. Robinson, 1824, 3 Barn. & Cr. 196.
3 Brewer v. Sparrow, 1827, 7 Barn. & Cr. 310; Lythgoe v. Vernon, 1860, 5 Hurl. & Nor. 180; Smith v. Baker, 1873, L. R. 8 C. P. 350.
4 Hitchin [or Kitchin] v. Campbell, 1772, 2 W. Bl. 827; Duncan & Johnson v. Stokes, 1873, 47 Ga. 593; Bacon v. Moody, 1903, 117 Ga. 207; 43 S. E. 482; Roberts v. Moss, 1907, 127 Ky. 657; 32 Ky. Law Rep. 525; 106 S. W. 297; Ware v. Percival, 1873, 61 Me. 391; 14 Am. Rep. 565; Walsh & McKaig v. Chesapeake, etc., Canal Co., 1882, 59 Md. 423; International Paper Co. v. Purdy, 1909, 136 App. Div. 189; 120 N. Y. Supp. 342; Parker v. Panhandle Nat. Bank, 1895, 11 Tex. Civ. App. 702; 34 S. W. 196, 198. And see 15 Cyc. 259, n. 50.
In Nanson v. Jacob, 1887, 93 Mo. 331; 6 S. W. 246; 3 Am. St. Rep. 531, it was declared that the allowance of a claim by an assignee for the benefit of creditors "was to all intents and purposes a judgment . . . and conclusive as such."
5 Daniels v. Smith, 1884, 15 111. App. 339; Thompson v. Howard, 1875, 31 Mich. 309; Thomas v. Watt, 1895, 104 Mich. 201; 62 N. W. 345; Carroll v. Fethers, 1899, 102 Wis. 436; 78 N. W. 604. But see Spurr v. Home Ins. Co. 1889, 40 Minn. 424; 42 N. W. 206; Otto v. Young, 1910, 227 Mo. 193, 127 S. W. 9, 18, and cases collected 15 Cyc. 260, n. 52.
6 1882, 7 App. Cas. 345, 360.
But there would seem to be no harm in permitting one who has indicated, by an unequivocal act, his intention to pursue one remedy, to change his mind and pursue the other, unless injustice will result to the other party. It has accordingly been contended that "the doctrine of election is really an application of the doctrine of estoppel," and that "an election by the party having a choice should not be conclusive upon him, until he has done an act making it impossible for him to choose again, or making it injurious to the public or unjust to the opposite party."2 If this view be accepted, neither the commencement of an action nor any subsequent proceeding short of a judgment in favor of the plaintiff or against him on the merits, constitutes an election. For the plaintiff should always be permitted, upon terms that will save the defendant from prejudice, to amend his pleadings or voluntarily to discontinue his . action and commence another. Likewise, the receipt, by the owner of goods tortiously sold, of the proceeds of such sale, is not an act which should estop the injured party from recovering damages for the conversion in excess of the amount received by him.
1 See also W. H. Griffith, "Election of Remedies,': 16 Law Quart. Rev. 160.
2 Professor Corbin, "Waiver of Tort and Suit in Assumpsit," 19 Yale Law Jour. 221, 239. And see Trimble v. Bank, 1897, 71 Mo. App. 467, 486.