erred in instructing the jury that if plaintiff was entitled to recover, he was entitled to recover the price or the balance due thereon. Uniform Sales Act, § 63(1).
The court instructed the jury that the property in the goods had passed to the buyer when they were delivered to the Railroad, designated by the buyer, in California. Uniform Sales Act § 19(2). The defendant excepted to this part of the charge, not because the court had usurped the function of the jury by stating that the property had passed, but because 'it is the undisputed evidence that the bill of lading was * * * to the order of (the seller) * * *.' (R. 257). This fact, however, does not necessarily prevent the property in the goods from passing to the buyer. Uniform Sales Act § 20(2).
Defendant argues that notwithstanding the property passed to the buyer, the measure of plaintiff's recovery is not the price, but damages for nonacceptance. The reason advanced in support of this view is that when Macias ordered the merchandise returned to Los Angeles he made an election to sue for damages under Section 64(1) of the Sales Act instead of the price under Section 63(1). The injustice of defendant's position is that it permitted the case to be pleaded, pretried and tried by plaintiff as an action for the price. Nowhere during the trial does defendant mention that plaintiff by his actions had elected as his remedy an action for damages under Section 64(1). It was not until well into the defense that defendant first intimated that plaintiff should be suing for damages.
If defendant is correct, a directed verdict should have been entered against the plaintiff at the close of his case for want of proof of damages. The plaintiff did not undertake to prove the market value of the parts at the time and place of delivery. If he had done so, such evidence would have been inadmissible. Defendant did not move for a directed verdict at the close of plaintiff's case. (R. 124-5).
The defense of election of remedies is an affirmative defense and should have been pleaded. Rule 8(c), F.R.C.P.; Bagwell v. Susman, 6 Cir., 1947, 165 F.2d 412, 415.
Notwithstanding that this defense was not pleaded defendant insists that the court now hold as a matter of law that plaintiff elected his remedy to sue for damages when he ordered the merchandise reshipped to California. But the court does not agree that plaintiff's instruction to the Railroad ipso facto constituted such an election as a matter of law. The issue of election of remedies, if properly pleaded, would have been one of fact for the determination of the jury. Because defendant neglected to plead it affirmatively, the evidence relating to plaintiff's directions to the Railroad was immaterial and of no effect in an action for the price. If this is error and the question should have been determined at the trial, under Rule 49(a), F.R.C.P., the court would find as a fact that under the circumstances the plaintiff did not exercise such dominion over the merchandise as constituted an election of the remedy to sue for damages instead of the price. Indeed, the evidence seems to negative any intention on the part of plaintiff to elect the remedy of an action for damages except in the event he could have obtained possession of the goods from the Railroad at a cost of $ 1,200. The fact that plaintiff never regained possession of the merchandise distinguishes this case from many of those cited by the defendant.
Accordingly, plaintiff's objection to testimony concerning market value should have been sustained (R. 166( and the defendant's requests for charge on damages (Points Nos. 4, 5, 6, and Additional Points 3, 4) were properly refused. Another reason for refusing these requests is that they appear to the court, now as at trial, to be confusing, and the original points seem to be inconsistent with the additional points which were presented almost as an afterthought.
It will be noted, however, that defendant did persuade the court to instruct the jury on mitigation of damages and the jury was instructed that it could deduct from the price any damages it found from the evidence the conduct of plaintiff might have caused to defendant. (R. 250-1). This, we think, was more than defendant had a right to expect in a suit for the price, and was probably responsible for the loss of interest to plaintiff.
An order will be entered in conformity with this opinion.