62 Ind. App. 274 | Ind. Ct. App. | 1916
This is a second appeal by appellant in an action brought by him to recover on two promissory notes given by appellee for the purchase of a stallion. There was a judgment below for appellee on his cross-complaint in the sum of $200. Twelve separate rulings of the trial court, including the ruling on the motion for new trial, are assigned as error in this court, but the questions presented thereby for our determination are expressly limited by appellant in his brief, under the heading “Points
It follows that the only question which we are required to determine in this case is that above indicated in our quotation from appellant’s brief, and to such question this opinion will be limited. For the purposes of determining this question, we deem it unnecessary to set out the several pleadings to which the said respective demurrers were addressed, but instead will state more fully appellant’s contention. It is claimed by appellant that by reason of the questions presented on the former appeal and the decision of this court in respect thereto, it was “too late and improper for appellee to raise the issue of fraud on the second trial.”
With respect to this question, appellant states his contention as follows: “Appellee did not have the right * * * after having made his election in the former trial to stand on his contractual right, to entirely change the remedy, * * * and * * * rely upon his remedy in tort; * * * tha,t appellee did not claim that he had not made an election by his pleadings and defense in the first trial, but he relied solely on his right to change his theory on the fact that an alleged amended complaint was.filed.” Appellant further insists, in effect, that on the former appeal “appellee relied on the contract of warranty executed and delivered by appellant, and (that) this court held that the remedy provided in that contract was exclusive”; that such holding is the law of the case and is conclusive against appellee’s right to file amended answers and cross-complaint predicated on fraud.
cision, in so far as such pleadings are affected thereby, must be recognized as the law of the case. Hatfield v. Cummings (1898), 152 Ind. 537, 53 N. E. 761; Terre Haute, etc., R. Co. v. Zehner (1901), 28 Ind. App. 229, 62 N. E. 508; Shirk v. Lingeman (1900), 26 Ind. App. 630, 59 N. E. 941; Indiana Traction Co. v. Pring (1912), 50 Ind. App. 566, 578, 96 N. E. 180, and cases cited; Alerding v. Allison (1907), 170 Ind. 252, 260, 261, 83 N. E. 1006, 127 Am. St. 363. If, however, the amendments change the theory of the pleadings, or any of the material averments thereof, so as to present a law question essentially or materially different from that determined by the former appeal, the doctrine that such decision is the law of the case, can, of course, have no application. Indiana Traction Co. v. Pring, supra; Alerding v. Allison, supra. It appears from the record that the only amendment of the complaint was one as to the amount of attorney’s fees. This could in no way change or affect the question presented and decided by the former appeal. It follows that, unless the averments and theory of appellee’s amended answers and cross-complaint are such as to render inapplicable said doctrine, it must control the case.
As before indicated, these pleadings are predicated on fraud. The character and nature of the pleadings involved in the former appeal and the law ques
“Inasmuch as this case must be reversed for these errors, we have not examined the other paragraphs of the pleadings with a view of determining their sufficiency, and express no opinion thereon, further than to say that the construction placed on the written warranty and contract of insurance is the law of the case applicable to all the pleadings the same as to those expressly considered and ruled on.
“The judgment is therefore reversed with instructions to the court below to sustain the demurrer to appellee’s sixth paragraph of answer and third paragraph of cross-complaint, and to overrule the demurrer to appellant’s special reply to appellee’s first paragraph of answer, and for further proceeding not inconsistent with this opinion.”
Appellant contends, in effect, that the opinion expressly holds and limits appellee’s remedy in this ease to that provided by his written warranty and hence that appellee could have no defense or cause of action predicated on fraud. This contention results from appellant’s attaching to the italicized language, above quoted, an unwarranted meaning and effect. Such language must, be considered in connection with what immediately precedes and follows it, and when thus considered it seems to us there can be no doubt, or uncertainty as to its meaning, viz., that the warranty relied on by appellee had been reduced to writing and was controlled thereby; that such writing, the construction of which was the real thing being considered, was exclusive as to the remedy provided therein, and hence that any defense or cause of action based on warranty would likewise be so limited.
None of the pleadings, then before the court and
With respect to the other questions involved in his contention above set out,, appellant insists, in
If the party, in whose favor the right of election exists, by any decisive act, with knowledge of all the facts and his rights in relation thereto, chooses his remedy, such choice is final and absolute and bars his right to choose the other remedy afterward. Blank v. Independent Ice Co., supra; Nysewander v. Lowman (1890), 124 Ind. 584, 24 N. E. 355; Leach v. Adams (1898), 21 Ind. App. 547, 52 N. E. 813; Bunch v. Grave (1887), 111 Ind. 351, 12 N. E. 514; American Car, etc., Co. v. Smock (1911), 48 Ind. App. 359, 91 N. E. 749, 93 N. E. 78; 7 Ency. Pl. & Pr. 363-364; 15 Cyc 259, 260.
The doctrine, however, has no application where a party erroneously thinks he has a remedy that does not in fact exist, and, a mistaken selection of such a remedy, though it be prosecuted until adjudged inapplicable, will not foreclose or estop an after election to pursue an appropriate remedy, though the latter be inconsistent with the one fruitlessly prosecuted. Bunch v. Grave, supra; Marsh
The eases of Cohoon v. Fisher (1896), 146 Ind. 583, 588, 44 N. E. 664, 45 N. E. 787, 36 L. R. A. 193, and Gartner v. Corwine and other eases above cited are holdings to the effect that there is not necessarily such an inconsistency between a pleading based on fraud and a pleading based on breach of warranty growing out of the same transaction as will prevent their being joined in the same action, and, in any event, for reasons hereinafter indicated, it is immaterial in the instant case whether, under the particular facts set up in the pleadings under consideration, the remedy now selected and sought to be enforced by appellee is inconsistent with that selected and pursued at the former trial. This is so, because both the pleadings under consideration, and the evidence, show that said stallion was purchased in April 1904, and died on November 4, of the same year; that his barrenness as a breeder was not known until after the latter date. The written warranty, involved in the former appeal and now pleaded by appellant by way of reply to appellee’s answer, provides as follows: “In the event that the above named stallion in perfect health with proper usage and the mares to him regularly returned and tried or bred on one full service season trial, does not get with foal 50 per cent, of the producing mares regularly tried and bred to him, then on _ the return of said stallion to me at Attica, Fountain County, Indiana, during the first week of the month of April next following the full service season first concluded after the date thereof in good health and condition, I agree to furnish the above named purchaser without further charge another imported or pure bred stallion of equal value in exchange * * *. In the event
The former opinion is decisive of the question that, in an action based on such written warranty, the remedy therein provided is exclusive. Upon such question and to such extent the former decision is the law of the case.
The death of the stallion before the expiration" of the time fixed for ascertaining his breeding qualities and before the expiration of the time fixed by the contract for his return, precluded such return after the breach of the contract was ascertained and known by appellee, and, under the latter provision of the contract, above quoted, rendered the contract of warranty null and void and of no effect. Therefore, it follows that, when appellee elected .to pursue the remedy provided in the contract of warranty, no such remedy existed, and hence, under the eases, supra, there could be and was no election of remedies.
The cases cited, while recognizing and announcing the legal principle contended for by appellant, expressly except from its application, those cases in which the fraud charged is alleged to have induced both the acceptance of the contract of warranty and the purchase of the property sold and covered by such warranty. It was expressly held, in the case last quoted from, that there was no fraud on the part of Oltman Bros, in inducing Poland to accept the warranty.
In the instant case, the pleadings of appellee, both his answer and cross-complaint, contain averments to the effect that the written warranty was no part of the original contract of purchase and sale of the horse, but that afterwards, at the time of the delivery of the horse under circumstances particularly set out, such contract of warranty was, without any consideration, voluntarily included among other papers delivered to appellee by appellant, and that such execution of said contract was a part of and one of the steps in the fraud practiced by appellant.
The record as presented by appellant’s brief presents no reversible error and the judgment below is therefore affirmed.
Note. — Reported in 110 N. E. 1016. See under (3), (4) 3 Cye 395, 401; (5) 1 C. J. 1087, 23 Cye 417; (7) 20 Cyc 89; 35 Cye 443, 444. Warranty on sale of animal for breeding purposes, Ann. Cas. 1916A 573.