Jones v. Armeling

• Decision Date: 05 February 1924
• Docket Number: 1077
• Citation: 31 Wyo. 22,222 P. 569
• Parties: JONES v. ARMELING
• Court: Wyoming Supreme Court

222 P. 569

31 Wyo. 22

JONES v. ARMELING

No. 1077

Supreme Court of Wyoming

February 5, 1924

ERROR to District Court, Big Horn County; PERCY W. METZ, Judge.

Action by Henry R. Armeling against Gilbert G. Jones. Judgment for plaintiff and defendant brings error. Submitted on motion to dismiss error proceedings and on the merits.

Affirmed.

C. A Zaring and R. B. West for plaintiff in error.

The evidence is insufficient to sustain the verdict or judgment. A warranty must be based upon consideration, 24 R. C. L. 154. There is no implied warranty of the soundness or breeding qualities of an animal sold for breeding purposes, 24 R. C L. 203; Thompson v. Miser, (Ohio) 19 Ann. Cas. 874; McQuaid v. Ross, (Wis.) 55 N.W. 705. The warranty must be express, Leitner v. Thayer, 24 Wyo. 383; it was not shown that plaintiff in error made any false representations. We understand that in order to prove false representations, certain specific elements are necessary first, that the representations made were false; second, that defendants knew them to be false; third, that they were made with intent, that they be relied upon; fourth, that relying upon them plaintiff was induced to contract, 3 Words and Phrases; Schoellhamer v. Rometsch, 38 P. 344. The only representations made by plaintiff in error about the horse, were as to what the horse did the year before, which was not denied, Olmans v. Williams, 167 N.C. 312, 83 S.E. 344. The petition below was insufficient; the causes of action therein were contradictory; plaintiff should have been required to elect upon which should be submitted to the jury, Reed v. Poindexter, (Mont.) 40 P. 596, 31 Cyc. 122; Ferguson v. Gilbert, 16 O. S. 88. There was a defect of parties plaintiff; plaintiff's exhibits one and two being certain freight bills, should have been stricken from the record; instructions numbered three and four are erroneous, no cause of action being shown against Jones.

Brome & Hyde for defendant in error.

The methods provided by statute for reviewing judgments of District Courts are not concurrent; an election between two remedies excludes the other, 9 R. C. L. 956; Wood v. Claybourne, 82 Ark. 514; Amer. P. Co. v. Brick Co., 56 Fla. 116; Keedy v. Long, 71 Md. 385; Frisch v. Wells, 200 Mass. 429; Henry v. Harrington, 193 N.Y. 218; Gall v. Gall, 126 Wis. 390. This is upon the theory of several inconsistent remedies, the pursuit of one implies the negation of the others, Milling Co. v. R. R. Co. 97 Ia. 719; Zimmerman v. Robinson, 128 Ia. 172. Plaintiff in error elected to prosecute a direct appeal under 6412 C. S. and obtained an order staying execution under the statute; no bond was given in the error proceeding. He had therefore elected to prosecute a direct appeal, preventing defendant in error from enforcing his judgment, and he cannot now be permitted to abandon his appeal and prosecute error. The only error committed below, was in the elimination of defendant Warren Jones from liability. The defendants were all interested in the horse involved and participated in representations made to induce a sale. No objection was made to the petition until the close of the evidence, whereupon defendants moved for an election as to the count upon which a verdict would be asked, there being evidence sufficient to sustain both causes of action, the denial of this motion was not error, no objection should be regarded unless it is material, 5868 C. S.

C. A. Zaring and R. B. West in reply.

The authorities cited by defendant in error on inconsistent remedies are not in point. The rule governing alternative consistent remedies applies, and when we have had our case reviewed under either method provided therefor, we are barred as to the other 20 C. J. 33; Habelar v. Rogers, 131 F. 43. An actual or implied intent is necessary to constitute an election of remedies.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a proceeding in error to review a judgment rendered on the verdict of a jury against the plaintiff in error, the defendant below. The errors alleged are such as could have been properly assigned as grounds for a new trial, and the motion for a new trial is not embraced in the bill of exceptions. The proceeding, therefore, under our rule presents nothing that will be considered by this court. S.Ct. Rule 13, 29 Wyo. 552; Rubel v. Willey, 5 Wyo. 427, 40 P. 761. The bill of exceptions recites that plaintiff in error's motion for a new trial was denied, and that he excepted to the ruling, but this is not...