Smeesters v. Schroeder
101 N.W. 363
Wis.
1904
Check Treatment
Dodgug, J.

Tbe plaintiff, having been induced to trade horses by misrepresentation or false warranty as to tbe quality of the horse be was receiving, under familiar rules, bad right of election either to stand upon the- contract wbicb tbe defendant bad induced, and to recover tbe damages resulting to him by reason of tbe defective quality of tbe horse wbicb be bad received, or to rescind tbe contract, and, upon returning what be bad received, to recover back that with wbicb be bad parted, or its value if not recoverable in specie. Fairfield v. Madison Mfg. Co. 38 Wis. 346; Park v. Richardson & B. Co. 81 Wis. 399, 51 N. W. 572. It is, of course, apparent, as stated in tbe cases above cited, that tbe remedies above described are wholly inconsistent. Either there is a contract, for breach of wbicb plaintiff is entitled to recover damages, or tbe contract is set aside and goes out of existence, whereby be becomes entitled to a return of that with wbicb be parted on tbe faith of tbe contract. Tbe existence of one situation negatives tbe other.

Tbe exercise of such election is, of course, mental — provable only by some overt act • hence tbe law bas become established that, when a party vested with such election does some decisive act eVincing bis choice, be bas then adopted that position finally, and cannot recede from it, with some exceptions in tbe presence of mistake or ignorance of material facts. *119Boothby v. Scales, 27 Wis. 636; Boynton F. Co. v. Sorensen, 80 Wis. 594, 50 N. W. 773; Grook v. First Nat. Bank; 83 Wis. 31, 52 N. W. 1131; Hildebrand v. Tarbell, 97 Wis. 446, 456, 73 N. W. 53; Carroll v. Fethers, 102 Wis. 437, 78 N. W. 604; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272; Robb v. Vos, 155 U. S. 13, 15 Sup. Ct. 4. It bas often been belcl that, whatever other facts may be decisive, the actual commencement of a suit predicated .on either theory is plenary and complete proof of the exercise of plaintiff’s election. Carroll v. Fethers, supra; Clausen v. Head, 110 Wis. 405, 85 N. W. 1028. The rule is invoked here, and claimed to have been satisfied by the mere taking out of the warrant of replevin; and much of the argument on both sides is addressed to the sufficiency of this act alone, and also to the question whether it is shown to have been done so in ignorance or mistake of material facts that it ought not to conclude plaintiff. We shall not deem it necessary to decide either of these propositions, for the election may as well be evinced and declared by other acts decisive and unambiguous in their character. Here, apart from the mere suing out of the warrant of re-plevin, it is established that the plaintiff, at a time when he had full knowledge of every fact, including the sale by defendant of the horse received from plaintiff, reiterated his demand for action consistent only with rescission of the contract ; insisting that his horse be returned to him, and tendering back, in the most conclusive manner, the horse he had received from the defendant, refusing to exercise any further acts of ownership over it, and leaving the same subject to the control of the defendant. This, as supplementary to the act of at least attempting to institute replevin proceedings, leaves no possible doubt that plaintiff had elected that the contract should be set aside, and that the rights of the parties should be such as resulted from that situation. His action now in seeking the damages claimed in this suit is consistent only with the continued existence of that contract.. The court was *120clearly right in bolding that the plaintiff was shown to have exercised an election in favor of the former situation, and must seek his remedies accordingly, and cannot maintain this action.

By the Oourt. — Judgment affirmed.