On Motion for Rehearing.
The appeal was originally decided upon the theory of election of remedies. That defense was set up by appellee in the court below, but, it now appears, was stricken out on exception, and therefore cannot support the judgment of affirmance based thereon. Accordingly, this court is relegated to further consideration of the ease, and if the action of the trial court in directing a verdict’ cannot be sustained upon other grounds than an election of remedies, then the judgment must be reversed.
And, upon a careful examination of the statement of facts, in response to appellant’s motion for rehearing, we have reached the conclusion that, even including the matter of election of remedies properly raised, the case was one for the jury. In view of another trial, we do not deem it advisable — it would not be proper — to enter into a discussion of the evidence. It is perhaps sufficient to say, generally, that the issues presented in appellant’s first assignment of error should have been submitted to the jury, and therefore that assignment must be sustained.
Appellant’s motion for rehearing is granted, the order of affirmance heretofore entered will be set aside, and the judgment of the cotftt reversed and the cause remanded.