128 Iowa 72 | Iowa | 1905
In the year 1890, O. C. Zimmerman, the plaintiff’s assignor, purchased a threshing machine from the defendant. The contract was in writing, and contained a warranty of the machine. The notes given by Zimmerman for the purchase price were transferred before maturity, and he has been compelled to pay them. It is claimed that the machine did not conform to the warranty, and the right of action based upon said alleged breach has been assigned to the plaintiff. In the year 1900 the plaintiff instituted her action at law alleging that the contract of purchase had been rescinded by Zimmerman on account
We had occasion to again consider the same question in the recent case of Redhead Bros. v. Cattle Co., 126 Iowa, 410, and stated the rule as follow's: “ An election exists only where two or more inconsistent remedies are open to a party, and he is at liberty to pursue any one of them. It cannot exist between consistent concurrent remedies, or between a rightful remedy and one which the party may mistakenly suppose to be applicable.” All the Iowa cases cited by counsel are in strict harmony with the rule here quoted. Klocow v. Patten, 93 Iowa, 432; Theusen v. Bryan, 113 Iowa, 496; Elliott v. Ins. Co., 109 Iowa, 39, Turning to other jurisdictions, we find a very general agreement to the rule which we have adopted. In Van Norman's Case, 43 N. W. 334, the Supreme Court of Minnesota, after stating the general rule as to election between two existing inconsistent remedies, adds: “ But We think it equally true that a mere attempt to pursue a remedy or claim a right to which the party is not entitled, and without obtaining any legal satisfaction therefrom, will not deprive him of the benefit of that which he had originally a right to resort to or claim. .. . . We know of no principle of law which imposes upon a party any other or greater penalty for attempting to assert a right to which he is not entitled than the judgment for damages and costs awarded against him
Under the law as above stated, we think the appellee’s act in endeavoring to enforce a recovery on the theory of a rescission .of the contract is not to be held an election of remedies. The result of the former trial was to demonstrate -that there was no rescission, and that plaintiff’s only remedy was for a breach of warranty. In the language of the cited eases such act indicates a mistake of remedy, and not a choice between two or more remedies, either of which was open to the plaintiff. It should be further noted in this connection that the authorities axe substantially unanimous in the proposition that, even where two or more inconsistent remedies exist, if the election between them is made without knowledge of all the material facts, it does not preclude the party from a subsequent choice. In the case at bar the appellant- is a foreign ■ corporation, which was represented in its- dealings with Zimmerman by different agents and employes. The claim of rescission upon which the appellee relied under the issue first joined was based on an alleged tender or offer of return madé by Zimmerman to, or upon a waiver of such return by, a certain agent-, who it was supposed or believed was duly authorized to receive it. The record of the testimony on the trial led this court to conclude that no such authority in fact existed,
II. Complaint is made of an instruction given by the trial court that no consideration should be given a provision in the contract by which, under certain given' conditions, the purchaser was required to test the machine in competition with another machine. In this there was no error. The case was tried, as to this feature of the controversy, upon the transcript of the testimony taken upon the former trial and before us upon the former appeal. We there held that the record presented no case requiring such test, and the trial court properly observed the rule,there announced as the law of the case. We find no inconsistency in the instructions as argued by counsel. Numerous exceptions are taken to the rulings of the court upon the admission of testimony. We cannot extend this opinion to discuss them severally. A careful examination of the record as to each of the points made leads us to the conclusion that no prejudicial error is shown.
The judgment of the district court is affirmed.