#### Smeesters, Appellant, vs. Schroeder, Respondent.

*October 18*

November *15, 1904.*

*Sales: Breach of warranty: Rescission:' Actions: Election of remedies.*

Plaintiff brought bis action to recover damages for difference in value of a warranted borse received in trade for a borse of plaintiff’s. It appeared, among other things, that, before commencing the present action, plaintiff attempted to institute replevin proceedings, and thereafter, with full - knowledge of *117every fact, including tire sale toy defendant of the iiorse received from plaintiff, insisted that his horse toe returned to him, tendered back, in the most conclusive manner, the horse received from defendant, refused to exercise any further acts of ownership over it, and left the same subject to defendant’s control. *Held,,*that plaintiff was shown to have exércised an election in favor of a rescission of the sale, and therefore could not maintain the present action.

Appeal from a judgment of the circuit court for Brown, -county: S. I). Hastings, Circuit Judge.

*Affirmed.*

Action to recover damages for difference in value of a warranted horse received in trade for a horse of the plaintiff’s; the plaintiff claiming, also, $25 special damages for expenses in transporting and caring for such horse. The jury, by special verdict, found a warranty and a breach thereof, and $65 as the difference in value between the horse in fact and as .warranted. It appeared without dispute that upon discovering the breach of warranty the plaintiff, on July 9, 1902, went to defendant and demanded rescission and return of the horse given by plaintiff, saying that defendant’s horse would arrive for surrender the following day; that demand was refused. Thereupon, on same day, plaintiff made affidavit before a justice of the peace, and obtained a warrant of replevin for the horse given by him, which warrant he delivered to the sheriff, who, however, was unable to find and take the property, and therefore made no service of the warrant, which never was returned; the proceedings being dismissed on the justice’s docket two or three days later, and all before the commencement of this action. On July 10th plaintiff again demanded return of his horse; notified defendant that the other was in town and ready for delivery, and would be left at a'certain livery stable subject to his order. The 'defendant again refused rescission, and informed plaintiff that the horse he had traded had been sold to a third person. Whereupon plaintiff left the horse he had received at a livery stable, with orders to deliver to defendant, *118' and bas bad' no contact with it since. Tbe court ruled that these steps taken by tbe plaintiff constituted an election of remedies with wbicb tbe present action was inconsistent, and therefore ordered judgment dismissing tbe complaint, after having first overruled a motion for a new trial, from wbicb judgment plaintiff appeals.

For tbe appellant there were briefs by *Sheridan \& Evans,*and oral argument by *P. Sheridan.*

For tbe respondent tbe cause was submitted on tbe brief of *McGillan & Fontaine.*

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. *119*Boothby 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.