
    EUGENE KELLY and another, Respondents, v. EMANUEL BERNHEIMER and another, Appellants.
    
      Fraud—power of court to compel defendant to elect between inconsistent defenses.
    
    This action was brought to recover the price of barley, sold and delivered by the plaintiffs to the defendants. The defendants set up a warranty and a breach thereof, and that they were induced to purchase the barley by means of fraudulent representations, made by a person having charge of its sale for the plaintiffs, by which they had sustained damages, and for which they claimed an allowance. After the defendants rested, the court, upon the application of the plaintiffs’ counsel, compelled them to elect upon which of their two defenses they would proceed. Held, that this was error. The court has no power to require defendants to elect upon which of their defenses they will rely, where more than one is set forth in the answer, and evidence is given to prove their truth, unless they are so far inconsistent that they cannot properly coexist in the same transaction.
    Defendants, in support of their allegations as to fraud, offered to prove statements of Tilden, who acted as plaintiffs’ agent in selling the barley, made just before the sale, while the barley was being changed from the vessel in which it was loaded to the lighter, as to its quality, and that these statements were afterward communicated to the defendants, and acted upon by themq the court excluded the evidence. Held, that this was error.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on the judge's minutes.
    
      D. M. Porter, for the appellants.
    
      Aug. F. Smith, for the respondents.
   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event.  