
    (78 South. 459)
    ABRAHAM BROS. v. MEANS.
    (3 Div. 216.)
    (Court of Appeals of Alabama.
    April 2, 1918.)
    1. Action <&wkey;48(3) — Joindeb of Causes of Acci on — C omplaint — Statute.
    Where counts 2 and. 3 of the complaint, on which the cause was triéd," claimed for a breach of warranty and for money had and received, respectively, ’there being nothing to indicate that the claims as set out were for inconsistent remedies growing out of the same transaction, the complaint was not subject to- demurrer on that ground, in view of Code 1907, § 5328, providing that all actions on contracts, express or implied, for the payment of money, may be united in the same action.
    2. Trial <&wkey;145 — Affirmative Charge — Refusal.
    Where issue was joined on both counts on which the cause was tried, and there was evidence tending to sustain each, the refusal to give the affirmative charge as to either count was not error.
    3. Pleading (&wkey;369(l) — Election Between Counts — Inconsistent Remedies.
    Where it develops on trial that the counts in the complaint assert inconsistent remedies growing out of the same transaction, the court, on motion, will require plaintiff to elect as to which remedy he will pursue.
    Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.
    
      On second application for rehearing.
    Application overruled.
    For former opinion, see ante, p. 42, 75 South. 187.
    Steiner, Crum & Weil, of Montgomery, for appellant. Hill, Hill, Whiting & Stern, of Montgomery, for appellee.
   PER CURIAM.

This ease was carried to the Supreme Court on certiorari, and by that court reversed and remanded to this court for further action. We are now asked to pass upon the questions not considered in the first opinion. Abraham Bros. v. Noah Means, ante, p. 42, 75 South. 187.

The cause was tried on two counts; count 2 claiming for a breach of warranty, and count 3 for money had and received. There was nothing to indicate that the claims as set out were for inconsistent remedies growing out of the same transaction. The complaint therefore was not subject to demurrer on that ground. Code 1907, § 5328. Issue being joined on both counts, and there being evidence tending to sustain each of the counts, the refusal to give the affirmative charge as to either count was not error. Both counts being before the jury, and there being evidence tending to support each, the court properly charged on the law as applicable to each count.

Where it develops on the trial that there are counts in the complaint asserting inconsistent remedies growing out of the same transaction, the court, on motion, will require the plaintiff to elect as to which remedy he will pursue, but the defendant did not make this motion, but allowed the trial to proceed to judgment.

Application overruled.  