[3] Appellant contends that the judgment denying any recovery on the promissory note was not warranted by the holding of the trial court that there had been a breach of implied warranty. It is urged that for such a breach appellee had the option to rescind or affirm; that, by failing to return or tender the goods, she elected to affirm; and that, in such case, her defensive remedy was limited to a counterclaim for damages. It is pointed out that the result of the judgment is to relieve appellee entirely from payment, while leaving her in possession of the goods.
We did not fail to notice the peculiarity of the defense interposed and the anomalous result. We did not find it mentioned in the brief, however, and so gave it no consideration. Appellee objects that it is a point not made below and here raised for the first time. The objection seems to be well taken. We cannot find that appellant ever questioned that the defense made by the answer was sufficient in law, and that, if maintained, it would bar recovery on the note. The nearest approach to the point was in requesting these conclusions of law:
"(10) That the promissory note sued on in this case was an executed contract to unconditionally pay money at a stipulated time, and that the evidence of misrepresentation adduced by the defendant does not show that she was induced to enter into the execution of the promissory note by such fraud or misrepresentation as would justify the rescission of said note nor as would permit the defendant to escape liability on said note.
"(11) That there is no such failure of the consideration for said promissory note as would justify the rescission of said note, nor as would permit the defendant to escape liability thereupon."
These propositions did not, in our judgment, invoke a ruling that a successful defense was dependent upon rescission of the contract and return of the goods. The contention is made too late.
How the title to the goods may have been affected by the present judgment is a question not now to be determined. *Page 176
Appellant also restates and reargues the proposition that the court erred in basing judgment upon an implied warranty. We see no occasion to re-examine the question.
The motion for rehearing will be overruled.
PARKER, C.J., and BICKLEY, J., concur.