dissenting:
For the following reasons, I dissent. Defendant Dixon is correct in his contention plaintiff is precluded from taking judgment against him, after it had previously taken judgment against the two corporate defendants, hereinafter referred to as Gibralter. The operative principle herein is the doctrine of judicial estoppel, which does not permit a party, during the course of litigation, to assume or occupy inconsistent and contradictory positions.
Plaintiff, in its amended complaint, alleged that on April 11,1975, it executed and delivered to Gibralter Securities a check in the amount of $7,680. On April 16, 1975, plaintiff executed and delivered to Dixon, registered agent of the defendant corporation, two checks. Plaintiff further alleged, pursuant to a previous and ongoing course of conduct, the sums were advanced and loaned on a short-term basis to defendants.
Plaintiff further alleged:
7. That defendant Dixon is liable individually in that he was acting as an agent of George Perry in his personal, not corporate, capacity; and further that defendant George Perry likewise is liable individually by virtue of a course of conduct in the within transactions evidencing actions apart from his corporate capacity.
8. That defendants are liable jointly and individually for monies had and received, or in the alternative are unjustly enriched in the amount claimed.
Wherefore, plaintiff prays judgment against defendants, jointly and individually, in the principal sum of $10,680, plus interest and costs.
Gibralter was in default. It was by stipulation of the parties the plaintiff was awarded judgment against Gibralter. By this first judgment, Gibralter admitted its indebtedness to plaintiff, and plaintiff accepted Gibralter as its debtor according to the pleadings.
The majority opinion states the lack of documentary evidence is at the very nub of this controversy. The opinion declares:
No evidence was produced, documentary or otherwise, as to whether Gibralter received the proceeds of the purported stock sale, whether Dixon paid over to Gibralter’s customer the monies advanced by plaintiff, or whether Dixon himself was still in possession thereof.
This so-called missing evidence was conclusively established by plaintiff taking judgment against Gibralter based on pleadings, alleging Gibralter was the debtor and the transaction was conducted by the registered agent, defendant, Dixon. Where a party is successful in a position taken in a court proceeding, that position rises to a level of conclusiveness, and constitutes a solemn and sworn acknowledgment of the correctness of his claim.1
The doctrine of judicial estoppel has as its object the prevention of toying with judicial process. For my view, such toying occurs when a litigant is allowed success while maintaining inconsistent positions.
The maxim “one cannot blow hot and cold, in the same breath” finds its expression in the doctrine of judicial estoppel. A litigant is not allowed to maintain inconsist- . ent positions in judicial proceedings.2
When plaintiff assumed the position its transaction was a loan to Gibralter, conducted by registered agent, Dixon, took judgment against Gibralter on that basis, plaintiff could not thereafter assume a contrary position and take judgment against Dixon, individually, on the basis, Dixon was *798not the registered agent, and the transaction was not a corporate obligation.3
In Loomis v. Church4 the court stated: . It is quite generally held that where a litigant, by means of such sworn statements, obtains a judgment, advantage or consideration from one party, he will not thereafter, by repudiating such allegations and by means of inconsistent and contrary allegations or testimony, be permitted to obtain a recovery or a right against another party, arising out of the same transaction or subject matter. [Citations]
This majority opinion characterizes Dixon’s third point on appeal, as an election of remedies defense; and holds such to have been waived. In my view, there are two basic fallacies in such a position.5 First, at the time of the trial of Dixon’s individual liability, from the pleadings there was no apparent inconsistency. The claim against Dixon was for money had and received. Although the assignments were described in various ways, there was some evidence the assignments were the accounts receivable of Gibralter. This description is consistent with plaintiff’s pleadings, which allege that sums were loaned on a short-term basis.
Gibralter’s bookkeeper testified the proceeds from the accounts receivable were deposited in Gibralter’s general banking account and used to pay the expenses of the corporation. Such actions constituted a misapplication of funds, for an assignor who collects a sum due on an assigned chose is regarded as holding trust funds belonging to the assignee. The assignee may recover these funds either in an action for money had and received or in conversion. Dixon, as President, and having active management, charge, and control of the affairs of the corporation, could also be held individually liable if the evidence indicated he participated, or had knowledge amounting to acquiescence, or committed a breach of duty he owed to plaintiff.6 If plaintiff had proceeded to recover against Dixon, individually, on this basis, there would have been no inconsistency and no grounds for a judicial estoppel.7 Therefore, it would have been error if the trial court had granted a motion to dismiss, if made by Dixon on the ground of election of remedies prior to trial. Such, however, is claimed by the majority opinion as the appropriate procedure. The grounds for the judicial estoppel did not emerge until plaintiff took the position there was no assignment, no corporate obligation, and Dixon was not acting as an agent of a fully disclosed principal. This position was in complete contradiction of the facts upon which plaintiff was awarded judgment against Gibralter.
Second, the majority opinion fails to distinguish between an election of remedies and an election of substantive rights.
Frequently, what is often spoken of in judicial opinions as a choice between remedies is in reality a choice between substantive rights. The distinction is one not infrequently obscured, and yet it is important that it is heeded. An election between substantive rights goes not to the form, but to the substance, affecting some right selected, whereas an election *799of remedies goes to the forms of action or procedure, and has no reference to a choice between substantive rights. Although the courts are not in agreement whether an election of an inconsistent remedial right is conclusive prior to judgment, if a litigant chooses one of two or more substantive rights, he is bound by his choice, regardless of whether he obtains a judgment.8
There is further elaboration of the distinction in Restatement, Contracts, § 381, Comment d:
A choice between remedies for an injury must be distinguished from a choice between substantive rights and privileges. An offeree has a choice between acceptance and rejection; and a single communicated statement is operative as the final and only choice. An infant has a choice, on reaching majority, between ratification and disaffirmance of his previous contract. Again, a communicated statement is generally final. The same is true as to the ratification and disaffir-mance of the unauthorized act of an agent or of a contract that is voidable for fraud. These are choices between substantive legal relations, between contract and no contract. The relation that is chosen is created by a mere manifestation of assent. In these cases the bringing of a suit may be such a manifestation.9
In the instant case, plaintiff made an election between alternative substantive rights. Plaintiff could claim its loan transactions were with Gibralter and conducted by agent, Dixon, or it could claim the acts of Dixon were unauthorized and were not a corporate obligation and, therefore, Dixon was personally liable for money had and received. If Gibralter had denied Dixon’s authority, or that the loans were not for corporate purposes and Dixon was not the corporate agent in the transaction, but was acting as an individual on his own account, plaintiff’s pleadings provided for this contingency in its claim for money had and received by Dixon. When plaintiff entered into the stipulated judgment against Gi-bralter, plaintiff manifested its election of substantive rights, viz., it had a contract with the principal, conducted by its agent. By the stipulation, Gibralter ratified any act of its agent and accepted the transaction as a corporate obligation. Thus, plaintiff elected with whom it had substantive legal relations and became bound by the corresponding rights and duties as set out by the substantive law. Plaintiff cannot subsequently renounce its election of substantive rights, and Dixon is correct in his contention that he is not individually liable, to plaintiff, because of his status as an agent to a fully disclosed principal.10
. Allen v. Allen, Wyo., 550 P.2d 1137, 1142 (1976).
. Id. Also see 31 C.J.S. Estoppel § 117 b, pp. 623-627.
. King v. Clodfelter, 10 Wash.App. 514, 518 P.2d 206, 210 (1974); Citizens Bank v. C & H Cosntmction & Paving Co., Inc., 89 N.M. 360, 552 P.2d 796, 802 (1976); Mecham v. City of Glendale, 15 Ariz.App. 402, 489 P.2d 65, 67 (1971); In Re Estate Of Cohen, 105 Ariz. 337, 464 P.2d 620, 623-624 (1970).
. 76 Idaho 87, 277 P.2d 561, 565 (1954).
. Of subordinate interest is the case of Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015, 1017 (1974), wherein it is stated: “First, the doctrine of election of remedies is not a doctrine of substantive law. It is a rule of procedure or judicial administration. It is no longer a defense. The common law doctrine has no application under Rule 8(e)(2) [§ 21-l-l(8)(e)(2), N.M.S.A. 1953 (Rep.Vol. 4)] ...” That rule is substantially the same as our 8(e)(2), U.R.C.P.
. Patrons State Bank And Trust Company v. Shapiro, 215 Kan. 856, 528 P.2d 1198 (1974).
. Those elements such as reliance and injury or prejudice to the individual, which are generally essential to the operation of an equitable estop-pel do not enter into a judicial estoppel or at least not to the same extent. 31 C.J.S. Estop-pel ⅜ 117b, p. 626.
. 25 Am. Jur.2d, Election Of Remedies, § 7, p. 651.
. Also see Petty v. Clark, 113 Utah 205, 214, 192 P.2d 589, 593-594 (1948): “. . . Substantive law is defined as the positive law which creates, defines and regulates the rights and duties of the parties and which may give rise to or cause for action, as distinguished from adjective law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective. . . . ”
.See Hennesy Equipment Sales Co. v. Valley National Bank, 25 Ariz.App. 285, 543 P.2d 123, 124 (1975): “It would therefore appear that a plaintiff who has alternative substantive rights against two persons and by pursuing a substantive right against one person, that pursuit acts as a ratification of the wrongful act of the other, the plaintiff is precluded from subsequently pursuing his remedy against the wrongdoer whose act was ratified. . . . ” Also see 116 A.L.R. 601, 602 for a discerning discussion of the distinctions between an election of remedies and an election of substantive rights.