This case was carried to the Supreme Court on certiorari, and by that court reversed and remanded to this court for further action. We are now asked to pass upon the questions not considered in the first opinion. Abraham Bros. v. Noah Means, ante, p. 42,
The cause was tried on two counts; count 2 claiming for a breach of warranty, and count 3 for money had and received. There was nothing to indicate that the claims as set out were for inconsistent remedies growing out of the same transaction. The complaint therefore was not subject to demurrer on that ground. Code 1907, § 5328. Issue being joined on both counts, and there being evidence tending to sustain each of the counts, the refusal to give the affirmative charge as to either count was not error. Both counts being before the jury, and there being evidence tending to support each, the court properly charged on the law as applicable to each count.
Where it develops on the trial that there are counts in the complaint asserting inconsistent remedies growing out of the same transaction, the court, on motion, will require the plaintiff to elect as to which remedy he will pursue, but the defendant did not make this motion, but allowed the trial to proceed to judgment.
Application overruled.