Plaintiff brought this case in a court of equity to foreclose a mechanic’s lien for surveying work upon defendant Terra Investment Company’s property. Defendant then filed a legal counterclaim for damages because of poor workmanship arising out of the surveying which was the basis for plaintiff’s claim. The trial judge erroneously overruled plaintiff’s objection to defendant’s legal counterclaim in what was then, ostensibly, an equity case. When put to proof plaintiff could not prove a valid lien. After plaintiff failed to prove equitable cognizance in its case in chief, defendant did not object to the equity court’s continuing with either plaintiff’s claim or defendant’s counterclaim. Neither did plaintiff object to the further consideration of its claim, although it continued to object *337to defendant’s counterclaim. The trial court held that defendant was not entitled to recover on its counterclaim and that although plaintiff had not proved a valid lien, it had a good claim, and the court awarded plaintiff a judgment.
Defendant appealed, seeking de novo consideration of hotli plaintiff’s judgment and defendant’s counterclaim. Although plaintiff contends that defendant cannot assert a legal counterclaim in what was originally an equity case, it nevertheless contends the appeal should be treated as one at law and defendant should not be entitled to a de novo consideration of the facts upon which plaintiff’s judgment was based.
It is this court’s view that both parties availed themselves of the use of the services of a court of equity for a trial of legal claims and that both waived their right to proceed at law. The two significant differences between proceedings at law and in equity are a jury trial at law and de novo review upon appeal in equity.
In the cases of Olson v. Roop, 255 Or 368, 467 P2d 437 (1970) and Winkleman v. Ore.-Wash. Plywood Co., 240 Or 1, 10, 399 P2d 402 (1965), we decided that a defendant in the position of defendant here waived its right to have its ease tried at law by failing to ask at the completion of plaintiff’s case in chief that the case be transferred to the law side of the court. In Olson we said:
“* * * However, In Winkleman v. Ore.-Wash. Plywood Co., 240 Or 1, 10, 399 P2d 402 (1965), we, finally, clearly held that a jury trial is waived by defendant’s failure, at the completion of plaintiff’s case in chief, to request that the case be transferred to the law side of the court for a jury trial. See also Ward v. Town Tavern et al, supra at 38, and *338Topolos v. Skotheim et al, 126 Or 683, 693, 250 P 235, 270 P 753 (1928). We believe this rule to be an eminently fair one, which adequately protects the right of a jury trial and at the same time avoids repetitious trials resulting from a change of heart after an adverse result is known.” 255 Or at 370-71.
In the opinion, we quoted from Ward v. Town Tavern et al, 191 Or 1, 38, 228 P2d 216, 42 ALR2d 662 (1951), as follows:
“ * * Notwithstanding the fact that the defendant’s motion deemed the lien invalid, it did not ask that the cause be transferred to the law side of the court and that it be tried from there on as a law action. We add that after defendant had become satisfied from the evidence that the lien was invalid, it did not object to the jurisdiction of equity over the remaining phases of the controversy.’ * * 255 Or at 372 (Emphasis ours).
The above authority dictates that defendant acquiesced in the court’s procedure by not objecting to the submission of plaintiff’s claim to the court and by its submission of its legal counterclaim. “[I]t did not object to the jurisdiction of equity over the remaining phases of the controversy,” which includes appellate review.
Plaintiff, on the other hand, filed what was a legal case in a court of equity. It can be argued that plaintiff may not have known until the proof was in whether it had a case of equitable cognizance or not and that if it found it did not have one, it was entitled to proceed at law. However, it certainly cannot be said that it did not have the same opportunity as defendant had to analyze its own proof at the completion of its case and to decide whether it had made out one of equitable cognizance. If a plaintiff decides he has not, he can move for a transfer to the law side of the court in the same manner as a defendant is required to do. *339We should not put a plaintiff, who made the original mistake and files the ease on the wrong side of the court, in any better position than our cases put a defendant. If a defendant must make up his mind and move at the end of a plaintiff’s case, the plaintiff, who starts the fiasco, should be placed in a no different position. We therefore conclude that plaintiff has likewise submitted the controversy to the mercies of a court of equity and its procedures, and that it should not be able to avoid a legal counterclaim, after it fails to prove equitable cognizance, by failure to request that its legal claim be transferred to a court of law.①
The dissent argues that Wiggins v. Hendrickson et ux, 191 Or 285, 229 P2d 652 (1951), is to the contrary. In Wiggins the plaintiff filed a non-defective lien but could not prove the defendant owed the debt upon which the lien was based. The court erroneously allowed the defendant to file and try a counterclaim over the plaintiff’s objection. Upon trial the court found against the plaintiff on his claim and for the defendant on his counterclaim. Upon appeal this court sent the case back for a jury trial. The distinction between Wiggins and this case is that the plaintiff in Wiggins never had an opportunity for a jury trial on the counterclaim. As long as his lien was in proper *340form, the plaintiff had a case of equitable cognizance and there was no basis for his asking for a transfer to the law side of the court. All he could do was to make an objection to the counterclaim’s being filed in the equity court, which objection he made. After putting on its case, the plaintiff here had an opportunity, of which it did not avail itself, to evaluate its proof and to move for a jury trial on both its claim and the counterclaim if, in its judgment, it had not proved a case of equitable cognizance. It did not so move, but, rather, it tried both its claim and the counterclaim to the court.
It is our conclusion that the parties submitted the controversy to a court of equity with the knowledge that equity procedures provide for appeals de novo. For all we know, one of the reasons the parties did not move the controversy to the law side of the court may have been that they thought they had an anchor to windward in the form of a de novo consideration on appeal if the result was adverse.
Plaintiff’s original claim was $2,025.00. It admitted its errors cost defendant $517.33, leaving a balance of $1,507.67. Defendant claimed that plaintiff’s errors in surveying cost it $2,551.75 in additional surveying fees to correct the errors plus $1,710.00 for added plumbing costs. It also claims plaintiff’s work was worth nothing because of the errors it made. The trial court found there was no evidence that additional surveying and plumbing costs caused by plaintiff’s errors were the obligations of defendant. The trial court is partially correct. There is no evidence that defendant was obligated to pay the bill for additional plumbing, but there is evidence that it became obligated to pay the additional cost of surveying allegedly *341caused by plaintiff’s errors. Mr. Smith, the surveyor who made the corrections, testified he was hired by a construction company but that defendant paid his bills. There is no evidence who was obligated for the plumbing. Defendant claimed the transcript is in error— that it was not Smith who so testified but rather the foreman of the construction company whose reference was to all the bills, and not merely to those of the surveyor. Assuming this is so, we can do nothing about it. The transcript has been settled and if errors existed, defendant should have had them corrected. This court is bound by the record.
It is our conclusion that the cost of the additional surveying was the result of plaintiff’s errors and that the record justifies a counterclaim of $2,551.75. We cannot hold, as defendant contends, that plaintiff’s work was worth nothing. Plaintiff had been working for many months. Its lien was for its last month’s charges before defendant discovered plaintiff’s errors and discharged plaintiff. We have no way of determining how much of plaintiff’s charges was for work found to be faulty. Nor can we conclude that $2,551.75 of plaintiff’s work was bad merely because that is the amount it took to correct it. One hour’s mistakes might take weeks to correct, for all we know. The credit of $517.33 allowed by plaintiff because of its admitted errors was not for surveying costs, so there is no duplication between defendant’s claim for surveying, which we are allowing, and plaintiff’s credit. As a result, the most this court can do is to set the two claims off against each other, which leaves defendant with a balance of $1,044.08.
The decree of the trial court is reversed and the case is remanded with instruction to enter a decree *342for defendant in the sum of $1,044.08 together with its costs and disbursements.
McAllister, J., concurs in the result.The dissent bases its opinion upon the proposition that the plaintiff is forced, in this instance, to make a choice without knowing whether the trial court is going to uphold the validity of its lien or not, and by moving for a transfer to the law side of the court and a jury trial, it must give away the validity of a lien not yet held to be invalid. It is not necessary that plaintiff do any such thing. If, in fact, a plaintiff wishes a jury trial if his lien is invalid and equitable cognizance is absent, all he has to do is to inform the court, at the end of his case in chief, that he wishes a jury trial in such event, but that he is not abandoning his contention that his lien is valid. Were it otherwise, plaintiff would have the best of both worlds—he takes a win if he gets it, and a jury trial at law if he loses.