*12ON MOTION FOR REHEARING
Appellees, Grayford Oil Corporation (Oil & Gas Energy, Inc.) and Maurice Hooker, now contend that we have erred in ordering stock in the corporation returned to appellant Henson after determination of the amount necessary to place the parties in the same position as they were on September 30, 1974. They take the position that Henson waived his cause of action for restitution during the trial below when his attorney made the following statement:
We feel we have to make an election between asking for the stock back or asking for an assignment and in that sense, yes, we are not asking for the stock back, we are asking for the assignment.
This statement was made during oral argument on appellees’ motion for instructed verdict which was overruled. They cite Dashiel v. Lott, 243 S.W. 1072, 1073 (Tex.Com.App.1922, jdgmt. adopted) and Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 908 (1955) to support this proposition. Both of these cases concern judicial admissions of fact and are not authority concerning abandonment of a cause of action. They also cite First National Bank v. McClellan, 117 S.W .2d 807, 808 (Tex.Civ.AppAmarillo 1938, no writ), which holds that where a party waives a cause of action during trial and the trial court finds in its judgment that the party announced the abandonment in open court and, therefore, is not entitled to relief, that portion of the pleading should not be considered on appeal because it would be inconsistent to induce the trial court to rely on the abandonment and on appeal complain of the trial court’s actions.
However, in this case there is no recital in the trial court’s judgment concerning abandonment of a cause of action by Henson. The judgment only recites that a directed verdict for the appellees would have been proper; accordingly, the findings of the jury were disregarded, and judgment non obstante veredicto-was rendered. Also, in Henson’s motion for judgment he prays in the alternative for rescission and the return of the consideration paid to appellees equal to one-third of the presently issued and outstanding stock in appellee corporation. Furthermore, the appellees in their motion for judgment make no mention of an abandonment of a cause of action concerning recovery of stock. In the original submission of the cause to this court, the appellees did not assert abandonment in a counterpoint in their brief nor during oral argument. This theory is raised for the first time on rehearing. Under these facts, we cannot agree that an abandonment of a cause of action has occurred. Accordingly, we overrule appellees’ contention.
Appellees also assert that Henson was required to elect between seeking specific performance and rescission. Application of the doctrine of election of remedies is conditioned upon the existence of two valid, available, and inconsistent remedies. A mistaken belief that a party has a particular remedy and his effort to enforce it is immaterial and does not constitute an election, unless the remedy in fact existed. Bandy v. Cates, 44 Tex.Civ.App. 38, 97 S.W. 710, 711 (1906, writ ref’d). In view of our holding that specific performance was not available to either party, the doctrine of election of remedies has no application.
Appellees raise other points on rehearing, but we find no evidence in the record to support them. Appellees also move for oral argument in support of their motion for rehearing, but we conclude that no useful purpose could be served by such argument because their position has been adequately presented in their motion for rehearing.
Accordingly, we reverse and remand this cause, and to avoid confusion, we clarify our instructions. The trial court should determine the changes in the corporation’s status and render judgment returning to Henson sufficient stock to place him in the same position he would be in if he had not transferred his 333 shares on September 30, 1974.
Motion for rehearing overruled.