(Specially concurring) : I concur in the result of the above opinion, but not in all of its reasoning., The action in my mind is not an action on an implied lease, but an action for the value of the use of real estate which has been wrongfully occupied.. ’
As far as the election of remedies is concerned, and the alleged errors in regard to the introduction of evidence in relation thereto, I concur in the opinion merely on the ground that there is no proof or offer of proof that any legal proceedings were actually had, and that “although acts prior to the' actual commencement of legal proceedings indicate an intention to rely upon one remedial right, yet "they do not constitute an election which will preclude the subsequent prosecution of an action or suit based upon an inconsistent remedial right, unless the acts contain the elements of an estoppel in pais.” 15 Cyc. 260.