This is an action of assumpsit for two cows of the value of $45.00, and comes before the court on exceptions.
The defendant pleaded the general issue with a brief statement admitting that the cows came into his possession, and alleging a prior judgment for the defendant in trover based upon the same cause of *532action. It was claimed on behalf of the defendant that the plaintiff, having full knowledge of the facts and having his election between an action of trover and an action of assumpsit, cannot after judgment in trover proceed in assumpsit. The court ruled that the action could be maintained! and rendered judgment for the plaintifE for $45.00 and interest. To this ruling the defendant excepted.
.The case of Foss v.Whitehouse, 94 Maine, 497, and the case of Hussey v. Bryant, 95 Maine, 51, cited by the defendant, are not in.point.' In the first of these cases the two remedies of assumpsit and trespass were both open to the plaintiff, as rights both in contract and in tort had accrued to him, but the court held that as the action of assumpsit, which was brought first, covered' a portion of the items which made up the damages in the action of trespass, the plaintiff having prosecuted the first to judgment could not proceed with the latter.
' In the second case the plaintiff had waived the defects in certain condemnation proceedings, and had recovered compensation for her land;" and afterwards sought in an action of trespass quare clausum to recover damages which could only be awarded on the ground that the proceedings in condemnation had been irregular. It was held that, having elected the former remedy, she had waived the irregularity and the latter remedy was not available to her.
It will be seen that in both these cases there were actually two remedies open to the plaintiff, either of which could be elected, while in the case at bar the plaintiff’s only remedial right was in assumpsit for the. price of the goods; and having mistaken his remedy he is not precluded from bringing the proper action. McNutt v. Hilkins, 80 Hun. 235.
Mistake of remedies differs from an election between inconsistent remedies. Sullivan v. Ross’ Estate, 113 Mich. 311, 318. The rule that “ the definite adoption of one of two or more inconsistent remedies, by a party cognizant of the material facts, is a conclusive and irrevocable bar to his resort to the alternative remedy” does not apply if in reality he had only one remedy. 7 Enc. of PI. & Prac. 364; Morris v. Rexford, 18 N. Y. 552; 15 Cyc. 262.
Exceptions overruled.