Restitution - Election of Remedies - Action in Quasi-Contract Against Joint Tortfeasor as Barring Fraud Action Against Other Joint Tortfeasors

Plaintiff sued for fraud, alleging that defendant engraving companies secretly agreed with an agent of the plaintiff to give the agent a commission in return for which the agent was to contract for engraving work to be done by the defendants for plaintiff at a rate in excess of the fair market price for such work. Upon discovery of the fraud and prior to the commencement of this action, plaintiff had instituted an action in a state court against its agent for money had and received, and had obtained an attachment. Upon defendants' motion to dismiss the fraud action, held, motion granted. The prior election of the plaintiff to sue its agent in the state court ex contractu and the securing of an attachment against him affirmed the acts of that agent in dealing with the defendants, and plaintiff is now estopped to bring this suit against them.

Sears, Roebuck & Co. v. Blade, (D. C. Calif. 1954) 123 F. Supp. 131.