missioners by both plaintiffs and defendants; and pleadings were also filed by the defendants as between themselves, there being a controversy as to their respective interests in the land sought to be condemned. In view of the fact that some of the claimants were infants, the litigation as between the claimants promised to be extended; but, as the question between the railroad company, on the one hand, and the land owners on the other, was simply the amount which the company should pay for the land, all the claimants, except the infant claimants (who, having no statutory guardian to agree for them could not enter into the agreement) signed an agreement by which arbitrators were selected to assess the damages, their award to be binding upon the parties and entered in the county court as the verdict of a jury.. The arbitrators filed their award on December 4, 1911, fixing the value of the land taken at $500.00. No exceptions were filed to this award, and two days later the court having heard evidence as to the value of the interests of the infant defendants, and finding the award to be fair and just as to them, adjudged $500.00 to be the value of the whole tract, and entered a formal judgment of condemnation, whereupon the railroad company paid said sum, together with the costs of the case, into court. The judgment further directed the $500.00 to be held by the clerk until the rights of the several claimants could be determined. To that judgment four of the adult claimants excepted, and prayed an appeal to the circuit court. The appeal was filed in the circuit court on December 7, 1911, and when it was called on the third day of the March term, 1912, it was passed to the 20th day of that term for trial. When the case was again called for trial on April 17th, the plaintiff moved the court to dismiss defendants' appeal; and defendants having objected to the motion, it was submitted, and the case continued to the September term. The case was again called on September 4, 1912, and passed to September 18th for trial; and when it was finally called for trial on the last named date, the plaintiff again moved the court to dismiss the appeal; and the circuit court having sustained that motion and dismissed the appeal, the defendants, Hensley, Jones and Pope, prosecute this appeal. The only question presented upon this appeal relates to the propriety of the circuit judge dismissing the appeal from the judgment of the county court. Section 69 of the Kentucky Statutes provides that an agreement of submission to arbitration shall be binding on the parties thereto, if it states the matter submitted, and who are to be the arbitrators; section 72 provides the award shall be a final settlement of the controversy between the parties; while section 73 provides that courts of equity shall have power over awards upon equitable *principles. See, also, Civil Code, section 451. The arbitration agreement satisfied the statute as to form, and following the statute it expressly provided that the award should be entered as the judgment of the court, and should be binding upon the parties. The award closed the question of damages, unless it was successfully attacked by an exception going to its validity. But no exception was filed to the award in either court. In Payne v. Payne, 8 Ky. L. R., 591, the agreement to arbitrate was similar to the one before us in that it pro'vided that the award should be made the judgment of the court. In upholding the award, this court said: "The power of the chancellor to determine the equitable rights of the parties has been taken from him, and a statutory reference agreed upon, and now this court is asked to reverse the judgment below, for no other reason than that the weight of the evidence on many of the issues is with the plaintiff. The award, it is true, by the entry of record was to be made the judgment of the court, and so of every statutory award made between parties; and although an appeal is allowed in this case, this court will not disturb a judgment that was not rendered by the chancellor. The right is reserved to the courts to set aside an award upon equitable principles, as if no statute in regard to awards had been enacted. Fraud or palpable mistake as to the law or facts is the only ground for reversing an award by the chancellor. Exceptions may be taken to an award made under the statute, for the reason the statute has not been followed." The case at bar was appealable under the express provisions of sections 839 and 840 of the statutes. Big Sandy Co. v. Dils, 120 Ky., 563. But the question of damages. had been determined by the agreement, and, therefore, the chancellor had no right to try that question. So. when the case at bar was called for trial in the circuit court, without any exceptions having been taken to the award, there was no issue for that court to try. The regularity of the award stood confessed. No complaint was made below and none is made here that appellants were denied sufficient time to present exceptions, or that time for that purpose was ever asked. Judgment affirmed. The Joseph Goldberger Iron Company v. The Cincinnati Iron & Steel Company. 1. 2. 3. 4. (Decided March 19, 1913.) Appeal from Kenton Circuit Court Trover and Conversion-What Necessary in Order to Recover in. Trover and Conversion.-In an action in trover for a conversion by the wrongful taking of property, it is not necessary to prove a demand and refusal of the defendant to surrender the property. Trover and Conversion-What Necessary to Maintain Action.— Where a plaintiff has either the possession of a chattel or the right to immediate possession thereof, he may maintain an action in trover for its conversion. Remedies-Rule as to Prosecution of Remedial Right-Bar-Election. The general rule is that the prosecution of one remedial right to judgment or decree, whether the judgment is for or against the plaintiff, is a decisive act which constitutes a conclusive election, and bars a subsequent prosecution of inconsistent remedial rights; but where the first action was dismissed before judgment it does not operate as such an election. MILLER OUTCALT and BYRNE & READ for appellant. CHARLES A. J. WALKER and H. C. BUSCH for appellee. OPINION OF THE COURT BY JUDGE MILLER-Affirming. This suit for trover and conversion by the appellee against the appellant arose out of the following facts: By a written contract of July 26, 1909, The Cincinnati Iron & Steel Company sold to Joseph Goldberger, who was then doing business in Cincinnati under the name of Joseph Goldberger Iron Company, a shear for cutting all kinds of iron and steel. The machine was to be paid for in installments as the work progressed; the first payment being due on or before September 1, 1909. Some question having arisen about the terms of the contract, it was finally agreed between the parties that Goldberger should not be required to pay for the machine until after it had been installed. By this verbal arrangement, the steel company agreed to accept Goldberger's note for $4,800.00, that being the purchase price of the machine, the title thereof to remain in the steel company. As the machine weighed about 175,000 pounds, it was necessary to make an extensive concrete foundation work for its reception. On November 9, 1909, Goldberger appeared at the office of the steel company, and, having stated that the machine had been installed and was satisfactory, he gave the following note for the purchase money: "$4,800. Cincinnati, November 9, 1909. "Four months after date we promise to pay to the order of the Cincinnati Iron & Steel Company, four thousand and eight hundred dollars, at five per cent. Value received. Jos. Goldberger Iron Co. "Jos. Goldberger. "No. 102, due March 9, 1910." Some time in January, 1910, Goldberger began the formation of a corporation to take over his business and to be known as "The Joseph Goldberger Iron Company.' The incorporation was effected about February 8, 1910. when the charter was applied for, and it was actually engaged in business as early as February 19, 1910. Joseph Goldberger was the owner of and used in his business certain real estate in Cincinnati, adjoining the Pennsylvania station, on East Front Street, known as the "old waterworks plant." He sold his business to the new corporation, including the real estate and all the assets of the former business, such as a leasehold, stock, scrap-iron and steel on hand, and all the machinery. He became the president of the new corporation, owning practically all of its stock, and remained in complete charge thereof until it failed and went into the hands of a receiver on October 6, 1911. It is contended by appellant that Goldberger did not sell the shear in controversy to the new. corporation, although he sold and turned over to it all the motors, pulleys and machinery connected with the shear. It is reasonably certain, however, from the proof, that the corporation used the machine from about February 19th, and perhaps earlier, until its failure; and during this period the machine cut about three million pounds of scrap-iron and steel. When Goldberger's note matured on March 9, 1910, it was not paid, and on April 2, 1910, The Cincinnati Iron & Steel Company filed a suit against Goldberger in Cincinnati on the note; and, at the same time, it filed another suit in the same court in Cincinnati against "The Joseph Goldberger Iron Company" for the conversion of the shear. Subsequently, on July 14, 1910, the steel company filed this action in the Kenton Circuit Court in Kentucky against "The Joseph Goldberger Iron Company" for the conversion of the machine, and took an attachment against the corporation's property in Kentucky. On April 18, 1911, the two actions in Cincinnati were dismissed without prejudice, nothing having been done therein except the filing of the petitions and and answers. The steel company then proceeded to try this action which had been filed in the Kenton Circuit Court. It resulted in a verdict and judgment for $4,800.00 for appellee against appellant, and from that judgment this appeal is prosecuted. For answer, "The Joseph Goldberger Iron Company". presented the following defenses: (1) there could not have been a conversion on February 3, 1910, as alleged in the petition, since the corporation was not organized and was not capable of doing any corporate act until February 8th, 1910; (2) the steel company could not recover because it failed to show a demand for the return of the machine and a refusal on the part of the defendant, both being necessary, according to appellant's contention, to establish a conversion; (3) that appellee failed to show that it was actually possessed of the shear alleged to have been converted, at the time of the conversion, or that it had the right to the immediate possession thereof; and (4) that in electing to sue Goldberger on the note, the steel company is bound by its election of that remedy and is estopped from suing the corporation for conversion which was based upon the inconsistent claim that the title to the shear remained in the steel company; and that by suing Goldberger it had waived its right to take the property back. This last defense is based upon the theory that the suit against Goldberger in Ohio necessarily conceded that the title to the machine had passed to Goldberger. We will notice these several grounds of defense in the order stated. 1. We do not understand the rule to be that in order to recover in trover it is necessary for the plaintiff |