In this jury-tried action to rescind the contract of sale by which plaintiff purchased a used 1953 Packard automobile from defendant on July 31, 1953, plaintiff sought to recover “the trade-in value” of $213 for an old Chevrolet, the five monthly installments aggregating $528 paid by plaintiff on the note given for the remainder of the sale price of the Packard (hereinafter referred to as the note), and minor items aggregating $45.42 incident to repairs on the Packard. In his counterclaim, defendant prayed judgment for the unpaid principal balance of the note, “interest as provided in said contract,” and an attorney’s fee of “15% of the balance due on said note.” Defendant’s motion for a directed verdict on plaintiff’s alleged cause of action was sustained at the close of plaintiff’s evidence; and thereafter, upon defendant’s oral motion and without further evidence, the court entered judgment for defendant on his counterclaim “for $1,-895.50 principal, $103.56 interest, and $294.-35 attorneys fees, a total amount of $2,-257.51.” Plaintiff appeals.
Before he purchased the Packard, admittedly known to have been driven about 6,-060 miles, plaintiff drove it but noticed nothing wrong with it then. He was induced to buy it (as he says) by defendant’s express oral warranty that “there is not a thing in the world wrong with it — I will guarantee it for a year.” On a trip to Harrisburg, Illinois, three days later, plaintiff and his son couldn’t “figure out what was wrong” when the Packard stopped with “the gas gauge showing half full”; but, after being towed to the nearest garage, the automobile “run all right” when some gasoline was put in the tank. Within the next five months, a broken pipe in the gasoline tank was found, “a rattle in the front end” developed, the clutch began to slip and finally burned out on another trip to Harrisburg, “there was a roaring noise in the back end” which “kept getting worse,” at times “the gear shift wouldn’t work,” and plaintiff had trouble with the shock absorbers, the door locks, the headlights, and a side ventilator window. Defendant did considerable work on the automobile; but, although some of the defects were corrected, plaintiff insists that the more serious were never remedied.
For such alleged breach of defendant’s express oral warranty (if established to the satisfaction of the trier of the facts), plaintiff might have elected either (a) to have rescinded the contract of sale, returned the Packard to defendant, and recovered whatever he (plaintiff) had paid therefor, or (b) to have kept the Packard and recovered, in an affirmative action .or by set-off or recoupment when sued by defendant for the sale price, the damages occasioned by such breach of warranty;1 but, plaintiff could not have pursued or intermingled the two inconsistent remedies at the same time, for the first is a disaffirmance, while the latter is an affirmance, of the contract of sale.2 The record before us plainly shows that in January, 1954, plaintiff tendered the Packard to defendant, demanding in exchange the sum of $500 (slightly less than the $528 theretofore paid by him on the note) ; that the automobile was tendered in plaintiff’s petition filed on February 13, 1954, and in his amended petition filed on June 25, 1954; and that, during trial on March 28, 1955, plaintiff’s attorney stated that “we want to keep our tender going and we now ten*621der the automobile again to the defendant.” We have no doubt but that plaintiff’s action was for rescission [Spivey v. Gee, Mo.App., 200 S.W. 726] — a conclusion confirmed by the further fact that plaintiff’s able counsel offered no evidence as to the difference between the value of the Packard as it was warranted to be and its actual value when delivered to plaintiff, which would have been the measure of damages if plaintiff, in reliance on the contract of sale, had sued for damages for breach of warranty.3
But, although plaintiff tendered the Packard to defendant in January, 19S4, thus repudiating his right and title thereto,4 he thereafter continued to drive the automobile “around town” until he had a heart attack on November 17, 1954 (borrowing other automobiles for out-of-town trips because he “was afraid to start” in the Packard), procured public liability insurance on the Packard, purchased in his name Missouri state license plates for the year ending September, 1955, obtained Portageville city automobile licenses for 1954 and 1955, and three days prior to trial refused to permit inspection of the automobile (then in plaintiff’s garage) by defendant. Such use of and exercise of dominion over the Packard, after tender thereof to defendant, was not that of a mere bailee and found no legal justification in plaintiff’s need for an automobile nor in his financial inability (if so) “to have money invested in two automobiles at the same time.”5 In our view of the case, plaintiff waived his right to rely on rescission,6 defendant’s motion for a directed verdict on plaintiff’s alleged cause of action was properly sustained, and the judgment for defendant thereon should be affirmed.
With respect to the judgment on defendant’s counterclaim “for $1,895.50 principal, $103.56 interest, and $294.35 attorneys fees, a total amount of $2,257.51” entered on defendant’s oral motion at the close of plaintiff’s evidence, defendant argues that, since plaintiff admitted execution of the note and “his (plaintiff’s) defense of rescission” failed, the judgment on the counterclaim should be affirmed. But, heeding the statutory injunction that “all pleadings shall be so construed as to do substantial justice” [Section 509.250; DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29, 32; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597], plaintiff’s admission in his reply that “he executed the note and chattel mortgage pleaded” in defendant’s counterclaim, when read in the light of his averment that he (plaintiff) “is not liable to defendant for any sum whatever on account thereof,” certainly could not be fairly said to have dispensed with the necessity of pfoof by defendant as to the unpaid balance of the principal sum of the note, as well as the amount of accrued interest and *622the attorney’s fee. And, upon the record before us, which we must take as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); E. C. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636, 644(21)], the judgment on the counterclaim cannot stand for the simple but basic reason that there was no evidence to support it, and the cause must be remanded for retrial on the counterclaim.
Although mere institution of suit does not constitute a conclusive and irrevocable election of remedies,7 it has long been settled that, where a party, having the right to pursue one of two inconsistent remedies, makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy,8 irrespective of whether such judgment has been for or against the electing party.9 “ ‘The basic concept of the doctrine of election is that a party shall not be permitted to insist at different times upon the truth of two inconsistent and repugnant positions, according to the promptings of his own interest, as to first affirm and later disaffirm a contract, or the like’ ” [Davis v. Hauschild, Mo., 243 S.W.2d 956, 959-960]; or, as our courts, borrowing from the vernacular of the Scotch, have stated it, a party may not both approbate and reprobate. United States Fidelity & Guaranty Co. v. Fidelity Nat. Bank & Trust Co., 232 Mo.App. 412, 109 S.W.2d 47, 49; Tower v. Compton Hill Imp. Co., 192 Mo. 379, 91 S.W. 104, 108. So, plaintiff in the instant case, having elected, voluntarily and with full knowledge of the facts, to disaffirm the contract and sue for rescission, a remedy clearly available to plaintiff when this action was instituted, and having pursued that remedy (albeit unsuccessfully) to a final judgment, may not, upon retrial of defendant’s counterclaim, affirm the contract and, by recoupment or set-off, recover damages for breach of warranty.
The judgment is set aside and the cause is remanded for retrial on defendant’s counterclaim in accordance with the views here-inbefore expressed, and with directions to re-enter the judgment for defendant on plaintiff’s amended petition when final judgment is rendered.
McDowell, p. j., and ruark, j., concur.. Phelps Mfg. Co. v. Burgert, Mo.App., 115 S.W.2d 107, 108(1); Harris v. Weber Motor Car Co., 212 Mo.App. 107, 251 S.W. 121, 122(2); Blair v. Hall, Mo.App., 201 S.W. 945, 947(7).
. Schroeder v. Zykan, Mo.App., 255 S.W.2d 105, 111(7); Nickerson v. Whalen, Mo.App., 253 S.W.2d 502, 507; Pfeiffer v. Independent Plumbing & Heating Supply Co., Mo.App., 72 S.W.2d 138, 143 (6); Aeolian Co. of Missouri v. Boyd, Mo.App., 65 S.W.2d 111, 113.
. Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W.2d 830, 832; Morten Lumber Co. v. Wisconsin & Arkansas Lumber Co., Mo.App., 268 S.W. 389, 390(1); Adams v. Hughes, Mo.App., 235 S.W. 168, 170(2).
. Meinershagen v. Taylor, 169 Mo.App. 12, 23, 154 S.W. 886, 890; Mack International Motor Truck Corp. v. Raining, Mo.App., 251 S.W. 107, 109.
. Brandtjen & Kluge v. Burd & Fletcher Co., 239 Mo.App. 268, 192 S.W.2d 651, 660(4); 46 Am.Jur., Sales, Section 765, pp. 895, 896.
. Brandtjen & Kluge v. Burd & Fletcher Co., supra, 192 S.W.2d loc. cit. 659, 660 (2, 3); Aeolian Co. of Missouri v. Boyd, supra, 65 SW.2d loc. cit. 114(6); Wayne Tank & Pump Co. v. Evans, Mo.App., 15 S.W.2d 895, 898(3, 4); Rock Island Implement Co. v. Wally, Mo.App., 268 S.W. 904, 912(11, 12); Mack International Motor Truck Corp. v. Raining, supra, 251 S.W. loc. cit. 108-109; St. Louis Carbonating & Mfg. Co. v. Loevenhart, Mo.App., 190 S.W. 627, 628(2); Sturgis v. Whisler, 145 Mo.App. 148, 130 S.W. 111, 113(6, 7). See also McCartney v. Taylor Aircraft Co., Mo.App., 140 S.W.2d 95, 99(2); Riverside Fibre & Paper Co. v. Benedict Paper Co., Mo.App., 201 SW. 584, 587(4); Annotation 41 A.L.R.2d 1173; Annotation 77 A.L.R. 1165; Annotation 36 L.R.A..N.S., 467.
. Otto v. Young, 227 Mo. 193, 127 S.W. 9, 18(19); Brayton v. Gunby, Mo.App., 267 S.W. 450, 452(3, 4); Maiden v. Fisher, Mo.App., 17 S.W.2d 563, 565(3); Marquis v. Pettyjohn, Mo.App., 212 S. W.2d 100, 104.
. Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 695, 101 A.L.K. 305; Cowan v. Young, 282 Mo. 36, 220.S.W. 869, 873; Johnson-Brinkman Commission Co. v. Missouri Pac. Ry. Co., 126 Mo. 344, 28 S.W. 870, 872, 26 L.R.A. 840; Boogher v. Frazier, 99 Mo. 325, 12 S.W. 885, 886; 18 Am.Jur., Election of Kemedies, Sec, 20, p. 143.
. Baker v. Aetna Casualty & Surety Co., Mo.App., 193 S.W.2d 363, 367(8); Keystone Press v. Bovard, 236 Mo.App. 156, 153 S.W.2d 130, 131-132(2); Powell v. Schultz, Mo.App., 118 S.W.2d 25, 30(6); 28 C.J.S., Election of Kemedies, § 14, p. 1087.