Thomas v. Lomax

1. From a reading of the petition it cannot be determined whether the plaintiff was seeking to show breach of an express or an implied contract. However, the plaintiff’s counsel, upon inquiry of the court, twice stated that the plaintiff’s; action was based upon an express contract. • Relying on these statements, both the court and the defendant’s counsel tried the case on that theory and the plaintiff is bound by such election.

2. Having taken the position in judicio that her action was on the theory of an express contract, the plaintiff is limited to-an action on an express contract.…