ON MOTION FOR REHEARING. In their motion for a rehearing respondents insist that under the pleadings appellant is not entitled in any event to participate in profits made in the business of furnishing horses and mules to the British Government and other belligerent allied powers engaged in the World War after March 1, 1916, the date of the sale agreement between J.C. Wolcott and J.D. Guyton. A brief survey of the record pertinent thereto will disclose the fallacy of such a claim.
Plaintiff's amended petition alleged that it was "agreed that the said joint adventure should continue as long as said corporations, partnerships or trade organizations, or any of them would be engaged in the business of supplying horses and mules to the British Government or to any of the allied or associated powers engaged in the War." It also contained the following allegation: "Said joint adventure continued from on or about the 1st day of September, 1914, to on or about the first day of January, 1918, at which time said business of supplying horses and mules to the belligerent, allied and associated powers was terminated."
Defendants filed a motion to strike. The first paragraph of that motion sought to strike the amended petition from the files on the ground that the cause of action therein pleaded was a departure from that pleaded in plaintiff's original petition. The second paragraph sought to strike from said amended petition the allegations above quoted, and another allegation specified in said motion, all on the grounds that they contradicted "important facts alleged and pleaded in said original petition" and constituted a departure. Defendants' motion to strike was overruled as to the first paragraph. As for the *Page 1096 second paragraph, it was overruled as to the allegation first above quoted and sustained only as to the allegation last above quoted. It does appear that in connection with these rulings the court said:
"The other paragraph which I read: `and it was further agreed that the said joint adventure should continue as long as said corporations, partnerships or trade organizations, or any of them would be engaged in the business of supplying horses and mules to the British Government or to any of the allied or associated powers engaged in the war,' is in reality immaterial and the motion to strike out will be overruled, because the adventure was dissolved, as stated in the original petition, March 1, 1916, and Mr. Wolcott retired therefrom upon the payment of that consideration, or as it is alleged in the amended petition that on that date he sold and transferred to Guyton all his interest in the joint adventure and in the corporations. The accounting, if an accounting is to be had, is of the net profits prior to that date.
"The order will go accordingly."
However, the record before us shows that subsequently, and before any testimony was taken in the case, the court said:
"The court heretofore, upon motion of the defendants, made an order striking from the amended petition the following language, upon page 4, in Paragraph 5 thereof: `said joint adventure continued from on or about the first day of September, 1914, to on or about the first day of January, 1918, at which time said business of supplying horses and mules to the belligerent allied and associated powers was terminated.' The motion asserted that the above allegation was a departure from the original petition and in direct conflict with the allegations of the original petition in which it was stated, paragraph 4: `said joint adventure continued from the first day of September, 1914, to March 16, 1916, at which time it was dissolved.' It is also alleged that such dissolution was brought about by the defendants' taking advantage of the then physical condition and illness of the plaintiff to so dissolve the joint adventure and defraud the plaintiff, as afterwards stated in the petition.
"In the amended petition, the plaintiffs are asking in brief, for such relief as they may be entitled to under the law and the same is true of the original petition.
"The court, in passing upon the motion heretofore in what was said at that time, does not want to be understood as passing upon the question as to the measure of the plaintiff's damage, or recovery, under the original or amended petition. If the plaintiff, either under the original or the amended petition is entitled not only to the profits accrued at the time the settlement was made with the plaintiff on either March first or March sixteenth, 1916, and in addition thereto for the unlawful and wrongful settlement and dissolution of the *Page 1097 joint adventure that matter has not been presented and has not been passed upon.
"The court is of the opinion that the allegations stricken from the amended petition are not vital or material to the issues and with such allegation being stricken out, they are still entitled to whatever relief, under the law and in equity, they could recover under either the original or the amended petition, and the motion to set aside the order heretofore made will be overruled and excepted to."
Respondents make no allusion whatever to the court's final ruling last above quoted, although it further appears from the record that the case was tried throughout on allegations of the amended petition sufficiently broad to set at naught their present contention. By answering over and proceeding to trial defendants waived their plea that the cause of action stated in plaintiff's amended petition constituted a departure. [Crecelius v. Ry. Co., 284 Mo. 26, 223 S.W. 413; Schroeder v. Edwards,267 Mo. 459, 482, 184 S.W. 108; Castleman v. Castleman, 184 Mo. 432, 440, 83 S.W. 757; and Scovill v. Glasner, 79 Mo. 449, 454.] In this state of the record respondents are not entitled to treat the case as having been tried on plaintiff's original petition.
Closely related to the foregoing contention, and likewise barred from our consideration by the state of the pleadings, is respondents' claim on motion for rehearing that rescission of the sale contract of March 1, 1916, pleaded in the amended petition, should not be regarded because plaintiff pleaded and therefore elected to pursue an inconsistent remedy in his original petition. It is unnecessary for us to determine whether or not the original petition should be so construed. Election of remedies must be pleaded. [20 C.J. 37, sec. 32; Bartlett v. McCallister, 316 Mo. 129, 143, 289 S.W. 814; Powell v. Dorton,321 Mo. 639, 12 S.W.2d 453, 458.] The amended answer upon which defendants finally stood contained no such defense. Therefore, it cannot now be considered.
Other questions raised in respondents' motion for a rehearing insofar as they relate to all issues except that of accounting, upon which issue alone the cause is remanded, are sufficiently dealt with in the principal opinion. The motion for rehearing is overruled.
All concur, except Ellison and Henwood, JJ., not sitting. *Page 1098