(after stating tbe facts as above). . It is quite clear from the evidence that, though the notice of the cancelation of the contract was served on J-uly 20th, 1911, neither the Halvorsen Company nor the Hammer-Condy Company made any demand for the possession of the land, nor attempted to enter thereon, until October, 1911, when they seized the flax. The service of the notice of cancelation was not in itself sufficient to confer upon the defendants any title in the grain in controversy. It is also clear that in April and prior to this time the said Honey sowed the crop in question. Such being the case the holding of the Minnesota court in the case of Aultman & T. Co. v. O’Dowd, 73 Minn. 58, 72 Am. St. Hep. 603, 75 N. W. 756, which is followed by this court in the ease of Golden Valley Land & Cattle Co. v. Johnstone, 21 N. D. 101, 128 N. W. 691, Ann. Cas. 1913B, 631, seems to be controlling. In that case the court said: “The fact that the owner of the premises may recover the rents and profits of the land for which it is being withheld precludes the idea of his right to recover the crops. It is the value and use of the land which the owner recovers, and not the fruits of the land. A contrary rule would give the owner the value of the use of the land and the value of the labor of the farmer in producing the crop, for the crop contains the value of both. In this case not only did Nelson sow and care for the crop before plaintiff became the owner of the land, but he continued in possession of the same thereafter, and was permitted to harvest and thresh it, and remove the same to his own granary. It would be an oppressive rule to permit the plaintiff to remain inactive while this was going on and Nelson adding to the gross value of the crop which he had raised in the course of months of husbandry, and then deprive him of the entire property. We sanction no such rule.”
It is true that in this case there is some testimony to the effect that the tenant was instructed by the Halvorsen Company to harvest the crop for it, but it is admitted that Honey had no knowledge of these instructions, and there is no controversy over the question that the land was seeded by Honey before any notice had been given to him of the cancelation of the contract. The rule as laid down in the Minnesota court, indeed, has not merely been affirmed by this court in the case of Golden Valley Land & Cattle Co. v. Johnstone, supra, but in the case of *20Gunderson v. Holland, 22 N. D. 258, 133 N. W. 546. It, as far as we can learn, has universal recognition. See 12 Cyc. 977; Brown’s Bl. Com. 235.
Nor do we believe that the counterclaim was availing in this case. The defendants had clearly elected to cancel the contract, and not to abide by it. Such being the case, it is clear that the defendants could not sue for the unpaid balance of the purchase price. Warren v. Ward, 91 Minn. 254, 97 N. W. 886; Gillilan v. Oakes, 1 Neb. (Unof.) 55, 95 N. W. 511; Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458. It is well settled, indeed, that a party may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one. with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. Thompson v. Howard, 31 Mich. 309; McNutt v. Hilkins, 80 Hun, 235, 29 N. Y. Supp. 1047, 1049; Welsh v. Carder, 95 Mo. App. 41, 68 S. W. 580.
So, too, the counterclaim was unavailing because it was not pleadable in the case at bar. The action of conversion is a tort action, and the counterclaim set forth an action on the contract. The cause of action, being the contract for the payments alleged to be due, was not a cause of action “arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.” See § 6860, Bev. Codes 1905. In order to be pleadable, it must have been such. Force v. Peterson Mach. Co. 17 N. D. 220, 116 N. W. 84; Braithwaite v. Akin, 3 N. D. 365, 56 N. W. 133.
The judgment of the District Court is affirmed.