Baltimore American Insurance v. Zimmerman

274 P. 255, 127 Kan. 509, 1929 Kan. LEXIS 153

• Court: Supreme Court of Kansas
• Decided: February 9, 1929
• Docket: No. 28,332
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

An opinion in this action was filed December 8, 1928. Carl Millheisler, the appellant, has filed a motion for a rehearing in which he says, among other things, that “the court did not pass on the question presented by the appellant on this appeal.” The contention is based on the following allegation which was contained in the amended answer and cross petition filed by Millheisler:

“That upon the discovery of the fraud complained of herein, which was less than two years before this amended cross petition was filed herein, [Millheisler] ratified said contract and thereby lost the right of rescission.”

Millheisler argues that by this answer he was entitled to abandon his action for rescission and recover damages for the fraud which had been committed on him. Attention is directed to the following statement contained in the former opinion:

“Issues were joined on that answer [asking for rescission]. The cause was afterward tried before a jury, but the jury did not agree. No judgment was rendered. On that trial Millheisler in open court elected to stand upon his cause of action for rescission.” (Ante, pp. 145, 146.)

. His first answer, the trial thereon, and his declaration in open court was such a formal election of remedies as precludes him from now changing his position and seeking to prevail on a different theory.

A rehearing is denied, and the former judgment of affirmance is adhered to.