On Motion for Rehearing
In his vigorous motion for rehearing, plaintiff insists that his suit was for damages for breach of warranty and that we have wronged him in holding that it was for rescission or, characterized more accurately and precisely, for recovery of the consideration paid by plaintiff under the rescinded contract of sale. When “it [thus] becomes necessary to determine the nature of the cause, that determination is based upon construction of the complaint” [Williams v. Illinois Cent. R. Co., 360 Mo. 501, 229 S.W.2d 1, 2(3), 20 A.L.R.2d 322; Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409(3)]; or, as otherwise stated, “(t)he form of the action is determined by the substance of the petition.” 10
*623In his amended petition on which the case was tried, plaintiff set out the contract of sale, including defendant’s oral warranty, detailed-the particulars in which (as plaintiff -alleged) said Warranty had been breached, then stated that “by reason of (said) facts plaintiff did offer to return the (Packard) to the defendant and * now offers to'return the same to defendant and obtain from the defendant his (plaintiff’s) promissory note * together with the cash payments that he has' made and other outlays hereinafter pleaded,’’ and emphatically averred that “he (plaintiff) did request defendant Guy to rescind said contract of sale and to return to plaintiff his promissory note and chattel mortgage, as well .as the agreed value of $213 of the Chevrolet automobile delivered to defendant, hut defendant refused to accept the same and refused to comply with his contract o.f warranty aforesaid, and plaintiff here and now again tenders to defendant said Packard automobile.” Plaintiff’s prayer was for $786.42, the sum. of “the trade-in value” -of $213 for an old Chevrolet, five monthly installments aggregating $528 paid by plaintiff on the purchase-moñey note, and payments aggregating $45.42 for repairs to the Packard. Plaintiff neither pleaded nor proved the difference (if any) between the warrarited and -actual value of the; -Pack1 ard. . :
As. we’have pointed out, an action for recovery of the consideration paid under a rescinded contract of sale and an action for damages for breach of warranty are wholly inconsistent and utterly repugnant, for the first necessitates .and depends Upon disaffirmance, but the latter. affirmance, of the contract of sale.11 Absent any plea in the alternative under Section 5Q9.t 110, RSMo 1949, V.A.M.S., plaintiff in .the instant case no more could have affirmec} and disaffirmed the contract of sale at the same time and in the single count of his amended petition than a wayfarer could have traveled in opposite directions at the same moment [compare Kemp v. Woods, 363 Mo. 427, 434, 251 S.W.2d 684, 6871, and the amended petition must be held to have charged a-cause of action, either for recovery of the consideration paid upo.n the rescinded- contract of sale or for damages for breach of warranty — not fop both.12
As under prior codes,13 “the pleadings continue to be of. the greatest utility in defining the issues of a case” tried under our present code.14 “* * *. (T) he petition is to be- of the same usefulness as be*624fore, or of more usefulness than before, in plainly stating the facts upon which the plaintiff relies as showing that he is entitled to recover.” Gerber v. Schutte Inv. Co., 354 Mo. 1246, 1251, 194 S.W.2d 25, 28. Pleadings are not to be used to conceal issues or to ambush the adverse party [Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 761, 217 S.W.2d 473, 475(2); Hilderbrand v. Anderson, supra, 270 S.W.2d loc. cit. 409], and “the court should not be charged with assuming that the pleader intended to conceal one cause of action within another.” Wollums v. Mutual Ben. Health & Accident Ass’n, 226 Mo.App. 647, 655, 46 S.W.2d 259, 264(8).
Generally speaking, the same rules which govern the interpretation and construction of other writings are applicable to pleadings.15 So, the language of a pleading is to be given its plain and ordinary meaning and such interpretation as fairly appears to have been intended by the pleader.16 In determining the cause of action sought to be alleged, the petition must be read “from its four corners” [State ex rel. Dutcher v. Shelton, 249 Mo. 660, 691, 156 S.W. 955, 963] and in its entirety;17 and, when it is reasonably possible to do so, effect should be given to every part of the petition.18 We may consider not only the facts pleaded but also the relief sought. Kemp v. Woods, supra, 251 S.W.2d loc. cit. 688(4), and cases there cited. “(I)n the final analysis, the question becomes what is the gravamen of the complaint and the gist of the action, in the resolution of which we ‘cannot resort to mere guesswork or speculation to determine whether a particular cause of action is pleaded’ and we must be concerned by what the petition alleges or fails to allege, rather than by what counsel may say. State ex rel. Hendrix v. American Surety Co. of New York, Mo.App., 176 S.W.2d 67, 69(1), 70(6).” Hilderbrand v. Anderson, supra, 270 S.W.2d loc. cit. 410. See also Section 509.250, RSMo 1949, V.A.M.S., and Hunter v. Sloan, 195 Mo.App. 69, 73-74, 190 S.W. 57, 59(2).
Application of the foregoing principles to the amended petition in the case at bar leaves us with no doubt but that it should be construed as predicated on rescission (or disaffirmance) of the contract of sale. To reach a contrary conclusion, it would be necessary for us “to rob, by construction, language of its plain and obvious meaning, or of the fair, reasonable, and obvious conclusion to be deduced therefrom” [Hood v. Nicholson, 137 Mo. 400, 414-415, 38 S.W. 1095, 1098], and to ignore those substantial portions of plaintiff’s amended petition which clearly charge, in emphatic and unequivocal terms, an attempted rescission of the contract of sale. *625This, we may not do. Hoeller v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 7, 10(5-7).
Our judgment that plaintiff’s amended petition states a cause of action predicated on rescission is strengthened by the statement in plaintiff’s motion for rehearing that “while it is true the original petition was one in equity for rescission and cancellation of the note, yet the amended petition stated positively that since the note given for part of the purchase price had been redelivered to the defendant ‘under the present state of the pleadings herein plaintiff is not in need of equitable relief.’ ” But, plaintiff’s action was not changed from one “for rescission” to one for damages for breach of warranty, simply by striking that portion of the petition which invoked equitable relief. For, a petition may count upon rescission even though' no equitable relief is sought, as is illustrated by the numerous cases19 which recognize a purchaser’s right, under otherwise appropriate circumstances, to maintain an action at law for recovery of the consideration paid under a rescinded contract of sale, if, prior to institution of suit, he has made timely return or (as plaintiff in the instant case alleged and proved) tender of the property.
Furthermore, the conduct of plaintiff and his counsel upon trial significantly comports with, and tends to confirm, our construction of the amended petition. Consult Kelley v. National Lead Co., 240 Mo.App. 47, 55, 210 S.W.2d 728, 731(2); Clardy v. Kansas City Public Service Co., 227 Mo.App. 749, 753, 42 S.W.2d 370, 372 (5). If plaintiff’s trial theory had been for damages for breach of warranty, evidence of plaintiff’s tender of the Packard to defendant obviously would have “had no place in the case.” Spivey v. Gee, Mo.App., 200 S.W. 726, 727. Yet, the record reveals that, on direct examination, plaintiff was asked what he did “with reference to tendering this automobile back to Mr. Guy,” evoking an extended response showing timely tender by plaintiff in January, 1954, prior to institution of suit; that plaintiff’s counsel then developed that “when suit was first filed you (plaintiff) also tendered the car in your pleadings”; and that, “to keep our tender going,” counsel followed with the statement, “we now tender the automobile again to the defendant — Mr. King (plaintiff) has already signed the certificate of ownership.” The tender was emphasized by the last two questions and answers on redirect examination of plaintiff; and, before closing plaintiff’s case, his counsel introduced in evidence the certificate of title to the Packard, duly assigned by plaintiff. The record before us persuasively demonstrates that plaintiff regarded proof of timely tender as of the essential essence of his case, and that the repeated references to tender may not be dismissed as inad-vertences, asides, or forensic showmanship.
Being convinced beyond doubt, as we are, that “the whole trend” throughout the pleadings and the trial was to recover the consideration paid under a rescinded (and disaffirmed) contract of sale [City Light, Power, Ice & Storage Co. v. St. Mary’s Mach. Co., 170 Mo.App. 224, 233, 156 S.W. 83, 86; Pittis v. Bunyard, 184 Mo.App. 502, 510, 170 S.W. 423, 425; Spivey v. Gee, supra], nothing could be better settled than that plaintiff is restricted and held on appeal to the same theory. Welch v. McNeely, Mo., 269 S.W.2d *626871, 875(2), and cases there cited. In the mellifluous cadence of my erudite and esteemed brother, “(h)aving chosen [his] mount in the court of first instance, [he] must ride it on through the appellate court” [State ex inf. Mooney ex rel. Stewart v. Consolidated School District No. 3, Mo.App., 281 S.W.2d 511, 515(9)], or in the blunter but. equally expressive parlance of a revered master of law and language, “(h)e made his own bed at the trial * * * (l)et ¾⅛ iie jn ⅛ above as below.” Long v. Lackawanna Coal & Iron Co., 233 Mo. 713, 732, 136 S.W. 673, 678.
Plaintiff further insists that, in any event,, we erred in holding that, upon retrial of defendant’s counterclaim, plaintiff might not. affirm the contract and, by recoupment or set-off, recover damages for breach of warranty — a ruling not essential to disposition of the instant appeal but believed to have, been advisable and proper in the interest of minimizing the possibility of error upon such retrial. In reaching the stated conclusion, we did not overlook the distinction between an election of remedies and a mistake of remedies, which finds expression in the principle that misconceived choice and futile pursuit of an imaginary and non-existent remedy do not preclude subsequent prosecution of a substantial and existent one.20 But, plaintiff’s evidence in the instant case established that, when he made his election, i. e., when he instituted suit on February 13, 1954, 21 he then had a choice between two substantial and existent, but wholly inconsistent and utterly repugnant, remedies, to-wit, either (a) for recovery of the consideration paid under the rescinded contract of sale for the Packard which he theretofore had tendered to defendant or (b) for damages for breach of warranty22 Plaintiff then stood, so to speak, at the fork in the creek. He elected to follow the route of rescission (or disaffirmance) rather than of af-firmance. The choice was his, not ours. His attempt, to reach the destination of adequate recovery over either of the two available routes necessarily carried with it the possibility of failure and the risk of defeat.23 True it is that plaintiff did not *627reach the point of no return until, on March 28, 1955, he went over the falls of an adverse judgment 24 — adverse because, at some point and time along the route (which we need not undertake to fix), his own conduct, in the long-continuing use of and exercise of dominion over the Packard not in keeping with his status as a mere bailee, ripened into a waiver of his right to recover on rescission.25 That plaintiff did not see fit to turn back and take the route of affirmance, while he yet might have done so, again was a matter of his own volition, not ours.
Plaintiff’s choice between two available but inconsistent remedies was not “a mere technicality” (as plaintiff now suggests) but was a substantial matter [18 Am.Jur., Election of Remedies, Section 32, loe. cit. 153] — as substantial as always must be the choice between affirmance and disaffirmance or, even more simply put, between “yes” and "no.” And (contrary to plaintiff’s contention unsupported by citation of authority), defendant may invoke plaintiff’s (now irrevocable) election without showing that he (defendant) would suffer disadvantage or loss unless plaintiff were required to stand by his election. In re Franz’ Estate, 344 Mo. 510, 523, 127 S.W.2d 401, 406(16) ; United States Fidelity & Guar. Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 415, 109 S.W.2d 47, 48(4). We need not here anticipate questions of pleading which may or may not arise upon retrial of defendant’s counterclaim.
Careful review of the facts and of the law has strengthened our conviction that the views expressed in our opinion were correct. Accordingly, the motion for rehearing or to transfer is overruled.
McDOWELL, P. J., and RUARK, J., concur.. Webster v. Sterling Finance Co., 351 *623Mo. 754, 173 S.W.2d 928, 931; Duvall v. Stokes, Mo.App., 270 S.W.2d 410, 423 (7). See also White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18, 21(4); Young v. Hall, Mo.App.; 280 S.W.2d 679, 681 (2); 1 C.J.S., Actions, § 46, p. 1100.
. See’cases cited in footnote 2, supra.
. Discussions with respect to the sufficiency of a petition to permit or support a judgment on any of two or more theories not inconsistent and repugnant, as on an express contract or on quantum meruit [In re Hukreda’s Estate, Mo., 172 S.W.2d 824, 826(5); Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 621], or as for conversion or breach -of contract [Osborn v. Chandeysson Electric Co., Mo., 248 S.W.2d 657, 661 (2)], or as for damages by reason of negligence or violation of the Federal Safety Appliance Act [Henry v. Cleveland, C. C. & St. L. Ry. Co., 332 Mo.1072, 61 S.W.2d 340, 341(4), certiorari denied 290 U.S. 627, 54 S.Ct. 70, 78 L. Ed. 546], obviously have . no relevancy here.
. Compare Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870, 872(2); kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648, 654(4); Christian v. Connecticut Mut. Life Ins. Co., 143 Mo. 460, 45 S.W. 268, 270(6); Currier v. Lowe, 32 Mo, 203; Morrison v. Painter, Mo.App., 170 S.W.2d 965, 971(14).
. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28; Grapette Company v. Grapette Bottling Company, Mo.App., 286 S.W.2d 34, 38; Williams v. City of Illmo, Mo.App., 279 S.W.2d 196, 201; Smith v. Githens, Mo.App., 271 S. W.2d 374, 381(23); Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409.
. State ex rel. Kansas City Missouri River Nav. Co. v. Dew, 312 Mo. 300, 319, 279 S.W. 65, 71; Millikan v. Thyson Commission Co., 202 Mo. 637, 654, 100 S.W. 604, 608 ; 71 C.J.S., Pleading, § 53, p. 119.
. Hickory County v. Fugate, 143 Mo. 71, 79, 44 S.W. 789, 792; Stillwell v. Hamm, 97 Mo. 579, 586, 11 S.W. 252, 253. See also State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 127, 204 S.W. 1093, 1097, and cases collected in footnote 7 under Section 509.250, RSMo 1949, 30 V.A.M.S.
. State ex rel. Kansas City Missouri River Nav. Co. v. Dew, supra, 279 S.W. loc. cit. 71(3); Hoeller v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 7, 10(5-7); Phillips v. Thompson, 225 Mo.App. 859, 864, 35 S.W.2d 382, 385 (1). See also Benner v. Terminal R. Ass’n of St. Louis, 348 Mo. 928, 937, 156 S.W.2d 657, 660(4), certiorari denied 315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211; Missouri District Tel. Co. v. Southwestern Bell Tel. Co., 338 Mo. 692, 93 S.W.2d 19, 23-24(11); 71 C.J. S., Pleading, § 53, loc. cit. 120.
. Consult 71 C.J.S., Pleading, § 53, loc. cit. 121; Hood v. Nicholson, 137 Mo. 400, 413-415, 38 S.W. 1095, 1098; Millikem v. Thyson Commission Co., supra, 100 S.W. loc. cit. 608; Cheatham v. Kansas City Life Ins. Co., Mo.App., 241 S.W.2d 47, 51(1).
. Dahler v. Meistrell, 224 Mo.App. 815, 821, 24 S.W.24 238, 241-242(5); Jones v. Norman, Mo.App., 24 S.W.2d 191, 194 (1); Girdner v. Alley, Mo.App., 256 S.W. 832, 833(2); Sturgis v. Whisler, 145 Mo.App. 148, 155, 130 S.W. 111, 113. Consult also Kesinger v. Burtrum, Mo.App., 295 S.W.23 605, 608; Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651, 659 (13); Green v. Security Mut. Life Ins. Co., 159 Mo.App. 277, 294-295, 140 S.W. 325, 332(10); Kingman-Moore Implement Co. v. Ellis, 125 Mo.App. 692, 699, 103 S.W. 127, 128-129.
. Pemberton v. Ladue Realty & Construction Co., 359 Mo. 907, 911, 224 S.W.2d 383, 385(4, 6); State, at inf. of Dalton ex rel. Tucker v. Mattingly, Mo.App., 275 SW.2d 34, 39(5); DeMott v. Great American Ins. Co. of New York, 234 Mo.App. 31, 36, 131 S.W.2d 64, 67 (9-10); Autocar Sales & Service Co. of Missouri v. Holscher, Mo.App., 11 S.W.2d 1072, 1074; 28 C.J.S., Election of Remedies, § 12, p. 1080; 18 Am.Jur., Election of Remedies, Section 24, p. 146.
. Two or more inconsistent remedies must have been available and known to the electing party “at the time he proceeded” [Pemberton v. Ladue Realty & Construction Co., supra, 224 S.W.2d loc. cit. 385 (6); DeMott v. Great American Ins. Co. of New York, supra, 131 S.W. 2d loc. cit. 67 (8) ] or “at the time the election is made.” Autocar Sales & Service Co. of Missouri v. Holscher, supra, 11 S.W.2d loc. cit. 1074(4).
. In those cases in which a purchaser, after an unsuccessful attempt to recover on rescission, has been' granted a retrial .(without discussion of the legal basis for such grant), the remedy of rescission ■ was imaginary and non-essistent when first invoiced. Bush v. Norman, Mo.App., 199 S.W. 721(1); Aeolian Co. of Missouri v. Boyd, Mo.App., 138 S.W.2d 692, 695 (4); Id., Mo.App., 65 S.W.2d 111; Sinclair Refining Co. v. Nat. L. McGuire Oil & Supply Co., Mo.App., 221 S.W. 378, 382; Hess v. Ehrlich, 166 Mo.App. 636, 150 S.W. 716. Not analogous.to or controlling in the instant situation are cases in which the purchaser, relying on a plea of total failure of consideration, sometimes has been denied [National Tube Works Co. v. Ring Refrigerating & Ice Mach. Co., 201 Mo. 30, 98 S.W. 620, 629-631 (3); Outcault Advertising Co. v. Schierbaum, Mo.App., 209 S.W. 982, 985-986(8, 9); Monarch Metal Weather-Strip Co. v. Hanick, 172 Mo.App. 680, 155 S.W. 858, 860(7)] and sometimes has been granted [Phelps Mfg. Co. v. Burgert, Mo.App., 115 S.W.2d 107; Texas Co. v. Mexico Power Co., Mo.App., 249 S.W. 423] a retrial to enable him to show partial failure of consideration.
.See cases cited in footnote 9, supra.
. See cases cited in footnote 7, supra.
. See cases cited in footnote 6, supra.