Stowe v. Mather

The facts are stated in Stowe v. Mather, 234 Mich. 385, where judgment for plaintiff was reversed and new trial granted. The second trial resulted in verdict and judgment for plaintiff, and defendant brings error.'

In this trial the declaration contains two counts, one on the theory of affirmance, the other on the theory of rescission. Glover v. Radford, 120 Mich. 542. The plea is the general issue. A defense attempted is that by a former declaration there had been an election of remedies. This is an affirmative defense, which was not pleaded, and which was not therefore available. 20 C. J. p.…