It is argued in the brief of counsel for the defendant, that the evidence fails to show that the defendant received the plaintiff’s money as his agent, or for the purpose of investing it in his name or in any particular manner; but shows rather that he received it for investment generally, either in his (the defendant’s) own name, with his own money, or otherwise,in his discretion; and hence, that the transaction rests entirely in contract, and furnishes no ground for an action ex delicto. We do not find it necessary to determine this proposition. The complaint states a cause of action ex delicto, and we prefer to dispose of the case on the hypothesis (assumed for the purposes of the case) that the evidence tends to prove the cause of action therein stated.
Considering the case from this standpoint, the controlling question is, whether, by talcing the defendant’s checks and notes on the accounting of October 1,1875, and receiving payment of two of the cheeks, the plaintiff has precluded himself from the right to maintain an action of tort on the original transaction between the parties.
There is some conflict in the cases as to what acts on the part of the plaintiff will operate as a waiver of the tort, and confine him to his remedy on the contract, when, but for such acts, either of those remedies would be available to him. Some of the cases cited on behalf of the defendant go to the extent of holding that the acceptance by the .claimant of a *188post-dated check, or a note payable at a future day, for the amount of the demand, is a waiver of the tort; while some of the cases cited on behalf of the plaintiff maintain the opposite doctrine.
We have been referred to no case, however, and have been unable to find one, which holds that an action ex delicto may be maintained on such a claim after it has been adjusted by the parties at a sum largely in excess of the legal liability of the defendant, and after the plaintiff has received the notes or other obligations of the defendant for the sum agreed ujjon, and has made collections on account thereof. It seems clear to us that such acts are entirely inconsistent with a right to maintain an action for the original tort, and that such a case is within the principle of the familiar rule, that “ a party cannot occupy inconsistent positions; and when one has an election between inconsistent courses of action, he will be confined to that which he first adopts.” Webster v. The Phœnix Ins. Co., 36 Wis., 67-72.
ITad the plaintiff brought his action before the accounting, either on the contract or on the alleged tort, the measure of his damages would have been the unpaid balance of the advances and legal interest. But the checks (a part of which have been paid), and the notes for the balance found due on the accounting, are for an amount largely in excess of the legal rule of damages; and the plaintiff made the accounting, accepted the checks and notes, and made the collections, with full knowledge of all the material facts in the casé. It must be held that, under the circumstances of the case, these acts of the plaintiff operate as a waiver of the alleged tort, and restrict him to his remedy on the contract. We do not think the rule which prevails in this state and elsewhere, that the giving of a negotiable note for an antecedent debt is not a discharge of such debt unless expressly so agreed, until the note is paid, has any application to the case. The question here is not whether the antecedent debt is discharged, but whether a tort has been waived.
*189It results from the view we have taken of the case, that the action in its present form cannot be maintained, and hence', that the circuit judge properly nonsuited the plaintiff.
JBy the Court. — Judgment affirmed.
Eyas, O. J., took no part.