It had reference for the most part to the port of the contention that the assessor must general values of property in the parts of individually assess all property on the roll, the county where the respective subdivisions and that an assessment made by a deputy are located. Some of petitioner's evidence assessor is invalid. This rule would make it bore on the condition, and value of the sev-impossible to assess property in some of the eral additions in which the property in ques-more important counties of the state, as it tion is situate, but, except in one or two is beyond the power of any man to investicases, petitioner did not produce witnesses gate each year every piece of property in who were familiar with the lots and blocks these counties and appraise it for assessspecifically described in its petition and who ment purposes. However, this proceeding is could advise the court as to their value. not appropriate to the determination of such Without a showing of familiarity with the a question. Petitioner's only assignment of property involved but little value can be at- error is: tached to the testimony of any witness, and the testimony of Ward, Cyrus, and Dement cannot be given much weight. [2] Mr. Hamilton did state generally that he knew the properties involved, and that they were not worth more than the values admitted in the petition. This is the opinion of an interested witness, and, unless it is strongly corroborated, it is insufficient to overcome the presumption of accuracy attaching to the assessment. Petitioner made a better showing in attacking the assessment of lots in addition of Silver Point Cliff than in the remainder of its case. The testimony shows that some of the lots in this addition have only a nominal value. They are assessed at from $15 to $50 a lot. The testimony shows that the lots in this subdivision differ greatly in value, and there is no way by which we can distinguish those of substantial value from those of nominal value. The burden is on petitioner, and it must fail because its testimony lacks the definiteness required to show the error of the assessor. [3] Petitioner offered in evidence certain contracts made by it with real estate brokers for the sale of the properties involved at stated prices. The defendant reserved an objection to this evidence, and the objection is well taken. Wichita Falls Co. v. Holloman, 28 Okl. 419, 114 Pac. 700, Ann. Cas. 1912D, 287, cited by petitioner, holds that offers to sell at stated prices are properly received as admissions against the party making the offers. On familiar principles these offers are not admissible on behalf of the party making them. The defendant proved that within two or three years a number of sales had been made of lots in the additions in question at prices equal to or in excess of the assessed valuations of petitioner's property. It would unduly prolong this opinion to set out the evidence bearing on the value of each of the tracts in which petitioner's property is located. We have carefully read and considered the testimony, and think that in no case does the petitioner clearly show that the assessment is in error to petitioner's disadvantage. [4] It appears that some of the assessments in question were made by deputy asWe are cited to 37 Cyc. 980, in sup sessors. "That the circuit court erred in rendering said decree and in holding that the property described in the petition was assessed at its true cash value." There are no allegations on which to try out the legality of these assessments made by deputies, nor can such an issue be determined in this kind of a proceeding. We find no error and the decree is affirmed. Under the bulk sales act (L. O. L. §§ 60696072), as amended by Laws 1913, p. 537, making certain sales void as to the seller's creditors, a sale is valid between the seller and purchaser, and is merely voidable at the instance of the seller's creditors. 4. FRAUDULENT CONVEYANCES * 225 BULK SALES RATIFICATION. ratify a sale in violation of the bulk sales act A seller's creditor may waive the fraud and (L. O. L. §§ 6069-6072), as amended by Laws 1913, p. 537. 5. FRAUDULENT CONVEYANCES 225-PROCEEDINGS AGAINST GARNISHEE-ESTOPPEL. A judgment creditor's attempt to collect its held not to estop it from proceeding against debt directly from the judgment debtor, etc., a garnishee, who had not changed his position because of the creditor's action or statements. 6. ELECTION OF REMEDIES 10 WHAT CONSTITUTES. of substantial facts affording a different remeA person commencing a suit in ignorance dy, may, upon acquiring such information, adopt the alternate remedy. 7. ELECTION OF REMEDIES 11-MISTAKE AS TO REMEDY. A judgment creditor's right to set aside a sale by the debtor, void under Bulk Sales Act (L. O. L. §§ 6069-6072), as amended by Laws 1913, p. 537, is not precluded by its previous action against the purchaser upon a nonexisting promise to pay the debt involved, since pursuing a fancied remedy does not waive the real remedy. En Banc. Appeal from Circuit Court, Baker County; J. W. Knowles, Judge. Action by the Oregon Mill & Grain Company against H. G. Hyde, defendant, with Chauncey Kirkpatrick, doing business under the name of the Kirkpatrick Grocery, as garnishee. Judgment for plaintiff against the garnishee, and the garnishee appeals. Affirmed. See, also, 66 Or. 21, 133 Pac. 69; 78 Or. 466, 153 Pac. 41, 488. Chauncey Kirkpatrick has appealed from a judgment which was rendered against him as garnishee after the issuance of an execution on a judgment that had been obtained by the Oregon Mill & Grain Company, a corporation, against H. G. Hyde, who once owned a grocery store. Hyde purchased goods for his business and became indebted to various wholesalers, including the Oregon Mill & Grain Company. In the early days of 1911, Hyde sold his business and the entire stock of goods, valued at $4,000, to Chauncey Kirkpatrick, who, in addition to a specified sum to be paid to Hyde, agreed to pay certain creditors who had sold goods to Hyde for use in the business. Hyde gave a bill of sale to Kirkpatrick, and this instrument contains a list of Hyde's creditors to be paid by Kirkpatrick. The name of the Oregon Mill & Grain Company does not appear in the list. On February 14, 1912, the Oregon Mill & Grain Company commenced an action against Kirkpatrick to recover from him the amount which Hyde owed the corporation, on the theory that Kirkpatrick had agreed to pay Hyde's indebtedness to it. The goods in the store were attached as the property of Kirkpatrick. A trial resulted in a directed verdict and judgment for Kirkpatrick, and upon appeal to this court the judgment was affirmed in an opinion delivered in June, 1913, and reported in 66 Or. 21, 133 Pac. 69, on the to H. G. Hyde." Not being satisfied with the certificate given by Kirkpatrick, the corporation obtained an order, as permitted by section 303, L. O. L., requiring the garnishee to appear for examination. Written allegations and interrogatories were served upon the garnishee in compliance with section 315, L. O. L. In the meantime, on February 5, 1914, Hyde had begun a suit against Kirkpatrick to reform the bill of sale by inserting in it the name of the Oregon Mill & Grain Company as one of the creditors to be paid by Kirkpatrick. Because of the pendency of the suit in equity, the parties to the garnishment proceeding stipulated on November 5, 1914, that its progress should be stayed until a determination of the suit. A trial of the suit in the circuit court resulted in a decree reforming the bill of sale, as prayed for, and a judgment in favor of Hyde for $535.62, which was found to be the amount due from Hyde to the corporation. Upon an appeal to this court we rendered an opinion, reported in 78 Or. 466, 153 Pac. 41, 488, in November, 1915, setting aside the judgment, reversing the decree, and dismissing the suit, on the ground that the demurrer to the complaint should have been sustained because the pleading was not sufficient. It also appears that on December 5, 1914, Hyde commenced an action against Kirkpatrick to recover $661.77, but subsequently on January 19, 1915, the action was dismissed on the motion of Hyde. The After the termination of the suit in equity, the circuit court, on January 18, 1916, heard and overruled a motion which the garnishee had filed against the allegations served upon him in the garnishment proceeding. governing theory upon which the allegations were framed was that the sale to Kirkpatrick was void as against the Oregon Mill & Grain Company because made without compliance with the requirement of the bulk sales act, and that therefore Kirkpatrick stood in the position of a third person holding Hyde's had filed and the court had overruled was property. The motion which the garnishee directed against those parts of the allegations which referred to the violation of the bulk sales act. The garnishee then returned the allegations and interrogatories with his written answer as directed by section 316, L. O. ground that the bill of sale constituted the only competent evidence of the terms of sale, and that, since the name of the Oregon Mill & Grain Company did not appear among the names of the creditors given in the bill of sale, the corporation was without competent evidence to prove the agreement alleged by it. L. The answer reiterates the affirmation Having failed in its attempt to recover from Kirkpatrick the Oregon Mill & Grain made in the certificate that the garnishee Company began an action against Hyde on neither owed Hyde any money nor had any September 25, 1913, to recover the price of property belonging to him. The garnishee rethe goods sold to him by the corporation. fers to the action which Hyde commenced This action terminated on January 14, 1914, on December 5, 1914, and dismissed on Janin a stipulated judgment for $716 against uary 19, 1915, narrates all the steps taken Hyde. An execution was issued on this judg- from the beginning to the end of the action ment on January 30, 1914, and a copy of it prosecuted by the Oregon Mill & Grain Comand a notice of garnishment were left with pany against Kirkpatrick, and recites the enKirkpatrick, who responded to the notice by tire story of the suit in equity brought by certifying on February 20, 1914, that he had Hyde against Kirkpatrick; and, based upon nothing in his possession or under his con- these facts, the garnishee pleads the defense trol "of any nature or description belonging of former adjudication, and also alleges that the Oregon Mill & Grain Company ought to be estopped to claim that the grocery store belonged to Hyde, because by prosecuting the action against Kirkpatrick the corporation elected to treat the store as property belonging to him. of the instant case, that as between Hyde and In Replying to the answer of the garnishee, the Oregon Mill & Grain Company explains the action which it unsuccessfully prosecuted against Kirkpatrick by averring that it was informed by both Hyde and Kirkpatrick that the latter would pay the debt owing from the former, and that acting upon such informa-sumed that he neither owed Hyde a debt nor tion it pursued à mistaken remedy. The circuit court concluded that a failure to observe the provisions of the bulk sales act operated to void the sale as against the Oregon Mill & Grain Company, and that therefore Kirkpatrick had in his possession property belonging to Hyde, and a judgment for $716 was accordingly rendered against Kirkpatrick in favor of the company. M. D. Clifford, of Baker (Clifford & Correll, of Baker, on the brief), for appellant. O. B. Mount, of Baker, for respondent. agreed to pay Hyde's debt to the corporation; that as between Hyde and Kirkpatrick the latter did not have in his possession any property belonging to the former; and that it has already been determined by a final adjudication that Kirkpatrick did not agree to pay Hyde's debt to the Oregon Mill & Grain Company. [2] The sale of the stock of goods was valid as between Hyde and Kirkpatrick, and therefore as between them the latter did not have property which in fact belonged to the former. 12 R. C. L. 525. The statute, HARRIS, J. (after stating the facts as however, interposes and provides that as to above). Sections 6069-6072, L. O. L., as the creditors of the vendor the sale shall "be amended by chapter 281, Laws 1913, and conclusively presumed fraudulent and void," commonly referred to as the "Bulk Sales so that while there may be a change of posAct," requires a written statement under session there cannot be a transfer of title if oath containing the names and addresses of the bulk sales act is not complied with, and the creditors of the vendor, directs the giv- hence the vendee holds in his possession ing of notice to such creditors, and provides property which in contemplation of law is that a sale of a stock of goods in bulk with- still the property of the vendor; and since out complying with the act "shall, as to any the vendee has property which in the eyes of and all creditors of the vendor, be conclu- the law belongs to the vendor, a creditor of sively presumed fraudulent and void." The the latter can attach the property. If the sale by Hyde to Kirkpatrick was the sale of vendee has sold or disposed of the property a stock of goods in bulk, and it was made he is nevertheless liable to the creditors of without attempting to comply with the re- the vendor to the extent of the value of the quirements of the bulk sales act. The judg-property, and the proceeds of the sale may ment in the garnishment proceeding is pred- be garnished by such creditors, on the theicated upon the theory that as against the judgment creditor, the Oregon Mill & Grain Company, the garnishee, Kirkpatrick, had in his possession property belonging to the judgment debtor, Hyde. The appeal is presented on the hypothesis that the suit in equity prosecuted by Hyde against Kirkpatrick | and the action at law pursued by the corporation against Kirkpatrick constituted (1) an adjudication that Kirkpatrick was not indebted to Hyde; and (2) an election by the corporation to approve the sale to Kirkpatrick. [1] The right of a judgment creditor to recover from a garnishee depends upon whether the garnishee has property belonging to, or owes a debt to, the judgment debtor. The garnishee becomes liable to the judgment creditor only because he is indebted to, or has property in his possession belonging to, the judgment debtor. The garnishee may have in his possession property which (1) is in fact, or (2) is in contemplation of law, although not in fact, owned by the judgment ory that the vendee stands in the position of a trustee who is responsible to the creditors for the disposition of the property. Kohn v. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. Rep. 941; Owosso Carriage & S. Co. v. Sweet, 107 Tex. 307, 179 S. W. 257, L. R. A. 1916B, 970; Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 62 S. E. 82; Schneider v. Lee, 33 Or. 578, 583, 17 Pac. 269; 12 R. C. L. 529. The right of the Oregon Mill & Grain Company to reach the stock of goods sold to Kirkpatrick does not depend upon whether Kirkpatrick had property which in truth belonged to Hyde; but its right depends upon whether Kirkpatrick had in his possession a stock of goods which had been delivered to him by Hyde without complying with the bulk sales act, and consequently it is immaterial whether Kirkpatrick owed a debt to, or had property which in fact belongs to, Hyde, or whether the garnishee in truth agreed to pay the debt of Hyde, or whether it was finally adjudicated that Kirkpatrick did not agree to pay Hyde's [3, 4] Although the word "void" is used, the plain meaning of the statute is that a sale is valid as between the seller and purchaser, but it is merely voidable at the instance of a creditor of the seller. 12 R. C. L. 474, 525; McGreenery v. Murphy, 76 N. H. 338, 82 Atl. 720, 39 L. R. A. (N. S.) 374. As said by Mr. Justice Burnett in Benson v. Johnson, 165 Pac. 1001, 1003, the legislation "vests in creditors a right which when acting for themselves they are at liberty either to assert or ignore"; and since a sale of a stock of goods is merely voidable at the instance of a creditor, the fraud which the law conclusively presumes to exist may be waived and the sale ratified by the creditor. Bradtfeldt v. Cooke, 27 Or. 194, 201, 40 Pac. 1, 50 Am. St. Rep. 701; Rice v. West, 80 Or. 640, 645, 157 Pac. 1105; Knoop v. Kelsey, 102 Mo. 291, 14 S. W. 110, 22 Am. St. Rep. 777, 779; 20 Cyc. 434; 12 R. C. L. 499. But as stated in Bump on Fraudulent Conveyances (4th Ed.) § 456: "Mere notice without any action on the part of the creditor, or mere acquiescence by taking no present measures to interfere with the transfer, does not amount to confirmation, for he can be precluded from assailing the transfer only on the ground of estoppel or agreement; there must be a benefit conferred upon him, or a disadvantage suffered by the grantee such as can bind the conscience of the former or clothe his act with the character of a contract." It is not pretended that the corporation gave its consent before the sale was made, and hence if the company is prevented from attacking the sale it is only because it has confirmed the sale either by acts and declarations which create an estoppel in pais, or by an election of remedies. an election of remedies is the choice by a party to an action of one of two or more coexisting remedial rights, where several such rights arise out of the same facts; but the term has been generally limited to a choice by a party between inconsistent remedial rights." See, also, Kearney, etc., Co. v. Union Pacific Ry. Co., 97 Iowa, 719, 66 N. W. 1059, 59 Am. St. Rep. 434, 439. An election of remedies is defined in 9 R. C. L. 956, "as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts." The basis of the application of the doctrine, as stated in Mills v. Parkhurst, 126 N. Y. 89, 26 N. E. 1041, 13 L. R. A. 472, 474, “is in the proposition that where there is, by law or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other.” The same facts may create two or more remedial rights, each of which is inconsistent with the other, and all of which exist in a state of suspension until one of them is selected by the person entitled to choose; but when he makes his choice the right chosen is preserved, and from that moment becomes the only one available to him, while all the rest are dissolved and cease to exist. Illustrations without number could be given. Our own precedents illustrate the doctrine. If a person is intrusted with chattels with power to sell, and pledges the property to secure advances made on his own account, the owner can sue him for the value of the property converted, or he can sue on the contract; but the owner cannot have both remedies. Nichols v. Gage, 10 Or. 82, 85. The breach of a contract providing for the conditional sale of personal [5] Kirkpatrick has not sustained any loss property gives the seller more than one remeor suffered any detriment or changed his dial right; but if he undertakes to recover position by reason of any act or declaration the price he cannot afterwards change his poof the corporation; nor has the corporation sition and recover the property in specie. gained any advantage or benefit by reason Francis v. Bohart, 76 Or. 1, 143 Pac. 920, of any act done or any declaration made by 147 Pac. 755, L. R. A. 1916A, 922; American it. Kirkpatrick has neither done anything Process Co. v. Florida Pressed Brick Co., 56 that he would not have done, nor omitted to Fla. 116, 47 South. 942, 16 Ann. Cas. 1054. do anything that he would have done, except The rule itself is simple enough, although the for the acts or declarations of the corpora- application of it is sometimes difficult and oction. Even though the Oregon Mill & Grain casionally confusing; and perhaps as suggestCompany were until now unknown to Kirk-ed in Rowell v. Smith, 123 Wis. 510, 102 N. patrick, nevertheless he would have done exactly as he did do. The conduct of the corporation did not work an estoppel in pais. Marquette County Sav. Bk. v. Koivisto, 162 Mich. 554, 127 N. W. 680. W. 1, 3 Ann. Cas. 773, some of the seeming conflict of judicial opinion arises out of a failure to observe the finer distinctions between the doctrines of estoppel in pais, res adjudicata, and election of remedies. The question of whether coexisting remedial rights are inconsistent with each other is to be determined by a consideration of the relation of the parties with reference to the right attempted to be enforced. American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 South. 942, 16 Ann. Cas. 1054; Capital City Bank v. Hilson, 64 Fla. 206, 60 South. "Election of remedies has been defined to be 189, Ann. Cas. 1914B, 1211; Rowell v. Smith, the right to choose, or the act of choosing be- 123 Wis. 510, 102 N. W. 1, 3 Ann. Cas. 773. tween different actions or remedies, where plaintiff has suffered one species of wrong from It is not necessary to determine whether the act complained of. And broadly speaking, the mere commencement of an action to en [6, 7] We now come to a consideration of the question of whether the prosecution of the action by the Oregon Mill & Grain Company against Kirkpatrick operated as an election of remedies so as to preclude the right subsequently to resort to garnishment. Election of remedies is defined in 15 Cyc. 252, thus: force one of two or more coexisting but inconsistent remedial rights operates as an irrevocable selection, although the clear weight of judicial opinion is to the effect that the commencement of a suit or action is an election. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L. R. A. (N. S.) 144; Conrow v. Little, 115 N. Y. 387, 22 N. E. 346, 5 L. R. A. 693; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1, 3 Ann. Cas. 773; Grizzard v. Fite, 137 Tenn. 103, 191 S. W. 969, L. R. A. 1917D, 652; 15 Cyc. 259; 7 Ency. Pl. & Pr. 368. In a few jurisdictions, however, the mere commencement of a suit or action does not prevent the plaintiff from dismissing it and pursuing another remedy. Johnson-Brinkman Com. v. Missouri Pacific R. Co., 126 Mo. 344, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675; 9 R. C. L. 961. defeated by the election of an inconsistent coexistent right. Kirkpatrick contends, and it is here assumed, that he never agreed to pay Hyde's debt, and therefore the corporation never at any time had the independent right to compel Kirkpatrick to pay Hyde's debt. The situation presented here then is one where it is conceded that immediately after the sale the corporation had the right it now seeks to enforce, but never at any time had the right it first asserted. In other words, the corporation did not at first assert a right that it did have, but it only asserted a right that it did not have. The corporation was mistaken. There were not in fact or in law two or more rights from which to choose, although one remedial right did actually exist. There would be neither justice nor sense in a rule that takes from a The selection of one of two or more co-person that which he has merely because he existing, inconsistent remedial rights is not claims that which he does not have. Our irrevocable, however, unless made with a attention has not been directed to a single knowledge of the facts out of which such adjudicated case involving a state of facts rights arise; and hence if one commences a analogous to those presented here and supsuit or action in ignorance of the substantial porting the position taken by the garnishee. facts which offer an alternate remedy, he If Kirkpatrick had promised to pay Hyde's may, when informed, adopt a different reme- debt then one of two rights would have been dy. Rehfield v. Winters, 62 Or. 299, 305, 125 available to the corporation, and a different Pac. 289; Kearney Milling & Elevator Co. v. state of facts would also be presented if Union Pacific Ry. Co., 97 Iowa, 719, 66 Pac. Kirkpatrick had been indebted to Hyde for 1059, 59 Am. St. Rep. 434; Zimmerman v. all or a portion of the purchase price and Robinson & Co., 128 Iowa, 72, 102 N. W. 814, that debt had been attached by the corpora5 Ann. Cas. 960; Moline Plow Co. v. Rodgers, tion for the payment of Hyde's debt. Carter 53 Kan. 743, 37 Pac. 111, 42 Am. St. Rep. 317; v. Smith, 23 Wis. 497. The garnishee in the Murphy v. Hutchinson, 93 Miss. 643, 48 South. instant case, however, is arguing that the 178, 21 L. R. A. (N. S.) 785, 17 Ann. Cas. 611; corporation must lose what all parties are 15 Cyc. 261; 9 R. C. L. 962. The Oregon Mill obliged to admit was a once existing right, & Grain Company excuses the prosecution of solely because it asserted a right which the action at law against Kirkpatrick by al- never existed at any time. The pursuit of a leging and offering evidence to show that it fancied remedy is not penalized by the loss was induced to bring the action by statements of a real remedy. The attempt upon the made by both Hyde and Kirkpatrick. We do part of the corporation to collect from Kirknot find it necessary to decide whether the patrick by a direct action against him was excuse offered is sufficient to bring the cor- the pursuit of a fancied remedy; the right poration within the rule which permits a par- to sue Hyde directly and to attach the propty to surrender the remedial right previous-erty in Kirkpatrick's possession was a real ly asserted and to adopt another inconsistent right which actually existed, and therefore right in lieu of the one surrendered, but we shall proceed to inquire whether the Oregon Mill & Grain Company did in fact select one of two or more coexisting, inconsistent remedial rights when it brought the action at law against Kirkpatrick. The garnishment proceeding arises out of the fact that Hyde owes the corporation and Kirkpatrick has property which in contemplation of law belongs to Hyde and can be applied upon his debt. When Hyde sold to Kirkpatrick, the corporation confessedly had the right to attach the property purchased by Kirkpatrick, but it did not have an independent right to compel Kirkpatrick to pay Hyde's debt, because Kirkpatrick had not agreed to pay it. It must be admitted that the right to recover from Hyde and the right to attach the goods in Kirkpatrick's possession existed when the purchase was completed, and that the prosecution of the action at law against Kirkpatrick was a fancied remedy, while the garnishment proceeding is a real remedy. In the well-considered case of American Process Co. v. Florida Pressed Brick Co., 56 Fla. 116, 47 South. 942, 16 Ann. Cas. 1054, the court uses the following language: "If in fact or in law only one remedy exists and a mistaken remedy is pursued the proper remedy is not thereby waived. Where more than one remedy for the enforcement of a particular right actually exists, and such remedies considered with reference to the relation of the parties as asserted in the pleadings, are inconsistent, the pursuit of one with knowledge of the facts, is, in law a waiver of the right to pursue the other inconsistent remedy." The rule that the assertion of a mistaken remedy does not preclude the enforcement of a real remedy is thoroughly established by the opinions of courts and text-writers. Powell |