This is the second appeal in this cause. See 142 Ala. 514, 39 South. 213. On tlie first trial the complaint contained three counts, and a demurrer was sustained for a misjoinder of counts. Judgment was rendered for the defendant on the first trial, from which the plaintiff appealed, and here assigned as one ground of error the rul" ing of the court sustaining the demurrer to the complaint for misjoinder. In response to this assignment of error, we said: “This first count, which claimed damages for deceit in the sale of a car load of oats, was in case, while the third count, both as orignally filed and -as amended, counted on a breach of contract in the sale. This constituted a misjoinder of causes of action that made the complaint subject to the demurrer interposed.” That was sufficient for the occasion, and. the purposes of the court at the time.. The nature of the second count in the complaint was not discussed or determined, the exigencies of the case did not require that it should be determined, and the court could not anticipate a return of the case, presenting the question now before us. On the trial of the cause, after the reversal and remandme-nt, the court allowed the defendant to plead over, and he demurred to the complaint on the ground of misjoinder *304Avitli respect to the first and second counts; the third count having been eliminated. The court overruled the demurrer. Judgment Avas rendered in favor of the plaintiff. Defendant appealed, and here assigns the ruling of the court overruling the demurrer to the complaint as error.
As has been shoAvn, the first count claims damages for deceit in the sale of a car load of oats; Avhile the second counts for recovery on a breach of warranty in the sale. A warranty is nothing more nor less than a contract, and may arise by implication or exist by express agreement. The second avers no breach of- duty imposed by the contract of Avarranty, nor is any deceit averred in promising that the oats Avere sound. It is obvious that breach of the contract of warranty, and not fiaud or deceit, is the gravamen of the second count. Consequently the count is ex contractu, and the court erred in overruling the demurrer. — Romano v. Brooks, 142 Ala. 514, 39 South. 213; Whilden v. Merchants’ & Planters’ Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Chambers v. Seay, 87 Ala. 558, 6 South. 341; Capital City Waterworks Co. v. City Council of Montgomery, 92 Ala. 366, 9 South. 343; Western Union Tel. Co. v. Krichbaun, 132 Ala. 535, 31 South. 607; Benningsgage v. Ralphson, 2 Show. 250, pl. 256. The case of Prout v. Webb, 87 Ala. 593, 6 South. 190, cited by appellant’s counsel, in no Avise conflicts with what Ave have said. Tavo cases from New York have been cited by appellee. It is shown in the case of Evertson’s Ex’rs v. Milas, 6 Johus. (N. Y.) 138, the two counts in the case of Hallock v. Powell, 2 Caines (N. Y.) 216, the first of the NeAv York cases cited, Avere for deceit, “the one in warranting a distempered horse to be sound, and the other for a, like deceit in promising that he was sound.” And the court in 6 Johns. 138, said: “The gist of the action, then, Avas the deceit, and not the contract.” And this, of course, warranted the holding there that there was no misjoinder. See, in further criticism of the case, Lovett v. Pell, 22 Wend. (N. Y.) 370 The case of Evertson’s Ex’rs v. Miles, supra, may be relied on as authority in support of, rather than against, the conclusion we have reached.
*305The car of oats was shipped to the plaintiff, and a hill of lading, with a draft for the purchase money attached, was forwarded to a local bank. Before the carrier would deliver the oats, or allow the plaintiff to examine them, he was required to pay the draft. On examination of the oats they were found to be of an inferior quality, and of a different kind from those contracted for. The plaintiff thereupon declined to remove them from the car, and informed the defendant, who resided in Atlanta, Ga., that he would not accept them, that they were not ‘as ordered,” that he could not use them at all, that they were on the railroad track subject to the defendant’s order, and he (plaintiff) rvould not move them. ITe also drew on the defendant through the Bessemer Savings Bank for the amount he had been required to pay for the oats, and notified the defendant of his draft. The defendant refused to refund the money paid by the plain" tiff, and refused to take the oats back. The plaintiff then took the oats and instituted this suit. These facts were set up in special pleas by the defendant in answer to the action, upon the theory of election of remedies and estoppel in pais. The court sustained the demurrers by the plaintiff to the pleas, but on the trial, which was before the court without a jury, the defendant had the benefit (under the general issue) of the matters set up in pleas. The judgment of the court is assigned as error by the defendant, as is also the ruling of the court on the demurrers to the pleas. In this state of the case, ordinarily, we would not discuss the defense brought forth by the pleas; but, as a reversal must follow for the error already pointed out, it is important, for the purposes of another trial, that we determine the merits of the defense.
No other suit than the one here being prosecuted has been instituted by the plaintiff, so it seems clear that the only remedy chosen by the plaintiff is the one involved in this action. “Although acts prior to the actual commencement of legal proceedings indicate an intention to lely upon one remedial right, yet they do not constitute an election which will preclude the subsequent prosecu*306tion of an action or suit based upon an inconsistent remedial right, unless the acts constitute an estoppel in pais. 15 Cyc. p. 260, E, and authorities cited in note 58; Orman v. Lane, 130 Ala. 305, 30 South. 441; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45. What is said in Thompson v. Harvey, 86 Ala. 519, 5 South. 825 (the authority relied on by the defendant), does not militate against what we have here said. If the plaintiff here had sued for the money back that he had paid, it would have been necessary for him to have shown a rescission or an offer to rescind. And it is true, as was said in that case, “an offer to return the chattel in a reasonable time, on' the breach of warranty, or where fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted by the seller, and the contract is rescinded.” But here the defendant declined to accept the offer, and he certainly should not be allowed to say, in the face of such a declination,'there was a rescission. To constitute a rescission in fact, it.required the concurring assent of both parties. — Robinson & Ledyard v. Pogue, 86 Ala. 257, 5 South. 685. “In order to create an estoppel in pais, the party pleading it must have been misled to his injury; that is, he must have suffered a loss of. a substantial character or have been induced to alter his position for the worse in some material respect.”- — -16 Cyc. p. 744; Moore v. Robinson, 62 Ala. 537; Hopper v. McWhorter, 18 Ala. 229; Carter v. Darby, 15 Ala. 696, 50 Am. Dec. 156; Adler v. Pin, 80 Ala. 351. It is manifest, from the facts of this case, that, in the light of the principle above stated,, the defendant cannot invoke the doctrine of estoppel; and we are at the conclusion that the doctrines of election of remedies and estoppel are not applicable, and the evidence failed to make good such defense.
It is not necessary to the trial of the cause on remandment. that we should consider the rightfulness or not of the judgment of the couit on the facts. For the error pointed out, the judgment of the court must be reversed, and the cause remanded.
Reversed and remanded.
Tyson, C. J., and Haralson and Simpson, JJ., concur.