Dates and the sequence of events are important to decision of this case. On June 7, 1955, plaintiff purchased a tractor with hydraulic bulldozer from defendant and paid $1,364.25 for it. It broke down during its first half day of use by plaintiff and defendant had it returned to its рlace of business at a cost of $85.40. On July 12, 1955, plaintiff, by his attorney, wrote defendant that he rescinded the contract on the ground of false representations and demanded return of the purchase money. On August 2, 1955, defendant’s attorney repliеd, declining rescission and stating that it was holding the equipment pursuant to further instructions from plaintiff. On August 3, 1955, plaintiff’s attorney made an offer to defendant’s attorney to settle on the basis that defendant keep the equipment, cancel its cartаge claim for $85.40 and return $1,100 to plaintiff. On August 19, 1955, plaintiff commenced suit against defendant, seeking damages on the theory of rescission. On August 23, 1955, defendant’s attorney wrote plaintiff’s attorney that no answer had as yet been received from defendаnt to plaintiff’s August 3d offer of settlement. In the spring of 1956 defendant’s attorney informed plaintiff’s attorney that defendant had repaired the equipment but he did not say when, whereupon plaintiff, *344 on May 25, 1956, amended his declaration by adding count 2, alleging thаt such action by defendant constituted an acceptance by it of plaintiff’s July 12th demand for rescission and return of full purchase price and that this had resulted in mutual rescission. It was not until after trial commenced that plaintiff and his attorney learned that defendant’s repairing of the equipment had not occurred until on or about September 1, 1955, after the suit had been filed. After the proofs were in the court directed a verdict against plaintiff on count 2, instruc-ing the jury that as а matter of law there could be no mutual rescission in the case because the act of repairing by defendant had not occurred before the suit was commenced. Thus, it was the position of the trial court that the rights of the pаrties were to be determined by the jury as of the date of commencement of suit. The jury returned a verdict for defendant. No appeal was taken.
Plaintiff then commenced the instant suit, declaring on an alleged contract resulting from his August 3, 1955, offer to accept $1,100 in settlement of his claim against defendant and defendant’s acceptance оf that offer on or about September 1, 1955, by exercising dominion over and repairing the equipment without authorization or consent of plaintiff. Defendant moved to dismiss this second suit on the ground of res judicata by reason of decision in the first case. The motion to dismiss was granted without trial on the merits. Plaintiff appeals.
It is plaintiff’s position that the judgment in the former suit for rescission оf the purchase contract is not
res judicata
of his rights under the alleged later contract on which this second suit is based. Defendаnt answers that in this suit plaintiff relies on the same act of defendant which was relied on in count 2 of the first suit as constituting acсeptance of plaintiff’s offer by defendant, namely defendant’s
*345
exercise of dominion over the equipment. Dеfendant goes on from there to urge that plaintiff’s theory in this case is inconsistent with that of count 2 in the first suit, that in bringing the first he made аn election between 2 inconsistent theories and that he is thereby barred from suing now on the abandoned alternative claim, citing
Mintz
v.
Jacob,
“The verdict as to the second count was not directed because plaintiff had not proven a сause of action. The right to recover was denied solely because the suit was begun before the cause оf action accrued. The judgment entered will be no bar to a subsequent suit for the same cause of action.
“ ‘The еstoppel does not depend upon the question whether justice was done in the first suit, but upon the merits having once bеen considered and passed upon.’ Fifield v. Edwards,39 Mich 264 , 266.
“ ‘No judgment in any legal proceeding can be a bar unless the rights of the party whose claim has been presented for adjudication have been passed upon, or he had the right in such proceeding to have the merits of such claim adjudicated.’ McKinney v. Curtiss,60 Mich 611 (syllabus).”
Reversed and remanded for further proceedings consistent herewith. Costs to plaintiff.