It is conceded that under § 4744, the reservation of title in the contract of conditional sale was valid as against the receivers, though the contract was not acknowledged or recorded. It is also conceded that the petitioner never had any right or remedy by way of mechanic's lien, because his claim was not for services rendered or materials furnished in the construction of the building. The right to a mechanic's lien is purely statutory and does not include a claim based on installing electric-light fixtures in the building.Rose v. Persse Brooks Paper Works, 29 Conn. 256. Upon this state of facts the question of law in controversy is whether, by operation of the doctrine of election between inconsistent remedies, the petitioner has lost his contract right of reclamation by attempting to enforce a remedy, by mechanic's lien, which he never possessed or had any legal right to possess. On general principles it is self-evident that the fruitless and mistaken pursuit of a supposed remedy which does not exist, ought not, of itself, to discharge a wrongdoer from liability, on the theory that the plaintiff has made an irrevocable election between inconsistent remedies. The authorities on this point are overwhelming. "A mere attempt to pursue a remedy *Page 4 or claim a right to which the party is not entitled, and without obtaining any legal satisfaction therefrom, will not deprive him of the benefit of that which he had originally a right to resort to or claim." Matter of VanNorman, 41 Minn. 494, 497, 43 N.W. 334. "The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses." Kinney v.Kiernan, 49 N.Y. 164, 169. "No case has been called to my attention, nor do I believe that any can be found, which holds that a person is estopped from pursuing a remedy that he is entitled to, because he has endeavored to avail himself of another remedy that he never was entitled to." Agar v. Winslow, 123 Cal. 587,591, 56 P. 422. "`The law has not gone so far as to deprive parties of meritorious claims . . . because of attempts to collect them by inappropriate actions, upon which recovery could not be had.'" Sullivan v.Ross' Estate, 113 Mich. 311, 318, 76 N.W. 309. The "unsuccessful use of a remedy, supposed to be, but in effect not, appropriate to vindicate the rights of a particular matter, . . . does not preclude plaintiff from thereafter invoking the proper remedy."Rowell v. Smith, 123 Wis. 510, 511, 102 N.W. 1. "`The whole doctrine of election is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.'" Standard SewingMachine Co. v. Owings, 140 N.C. 503, 505,53 S.E. 345. "A party is never put to an `election' except where two or more . . . remedies . . . are open to him, and he may rightfully pursue either. If there be but one available remedy, and he mistakenly pursues another which is not available, it does not operate as an election."Moon v. Hartsuck, 137 Iowa 236, 238,114 N.W. 1043. "Rejection of a claim because pursued in an *Page 5 action in which it cannot be entertained does not constitute an estoppel against the pursuit of the same right in an appropriate proceeding." Ash Sheep Co. v. United States, 252 U.S. 159, 170, 40 S. Ct. 241. See also the authorities collected in the note to Zimmerman v. Robinson Co., in 5 Amer. Eng. Ann. Cas. 962 (128 Iowa 72, 102 N.W. 814); 2 Words and Phrases (2d Series), Election of Remedies, 235; 20 Corpus Juris, pp. 21-25, and § 24 on pp. 33, 34, and 9 R.C.L. p. 962.
On the other hand, it is true that the recitals of the certificate of mechanic's lien executed and filed by the petitioner, when regarded as verbal acts evidencing intention, necessarily evidence an intent to affirm the sale and to treat the title to the articles in question as vested in the vendee, or in the receivers who stand in the shoes of the vendee; and the claim of the receivers is that the formal communication of such an intent is, of itself, enough to preclude the petitioner from thereafter reversing his position and asserting title in himself by reclamation proceedings, notwithstanding the concession that the petitioner's attempt to assert a mechanic's lien was in legal effect a nullity. The receivers cite no authority to this effect. All cases they rely on are cases where the conditional vendor had a legal right to one or more inconsistent remedies, and, having attempted to assert one, was held to his election. The Connecticut case was one where the conditional vendor not only filed a claim in insolvency proceedings but received a dividend, and it was held that he was thereby precluded from afterward resorting to an action of replevin. Crompton v. Beach, 62 Conn. 25,25 A. 446. These authorities are not in conflict with those which support the equally logical proposition that there can be no election except between existing and available rights or remedies. It is, of course, true that any act of the petitioner definitely announcing *Page 6 intent might, if acted on by others entitled to guide their course by his announced intention, ripen into an estoppel in pais; but there is no finding here that the vendee or the receivers changed their position because of the petitioner's futile notice of intent to claim a mechanic's lien. The most that can be said is that the petitioner's present claim is inconsistent with his original claim, because the attempt to reclaim assumes that title is still in the petitioner, while the attempt to assert a mechanic's lien assumed that title had already passed to the vendee. We think the cases cited and referred to clearly show that, in these days at least, consistency of claim is not required of a litigant except in choosing between two existing and available remedies, and that the petitioner has not lost his right of reclamation by making an inconsistent claim in the attempted assertion of a right which he did not possess.
Looking at the matter from another point of view, it is apparent that the measure of consistency required of a litigant in any jurisdiction must depend a good deal on the character of its rules of procedure. The doctrine of election is inherited from the inexorable logic of the formulary procedure of the common law, which necessarily demanded consistency as an end in itself. Modern procedure, more or less liberally in character, sacrifices consistency so far as is necessary to the attainment of substantial justice. In this jurisdiction, for example, an unpaid vendor is permitted to join a cause of action for the contract price, based on the theory that the title to the goods has passed to the vendee, with a cause of action in trover, based on the theory that the title is in the vendor; without being required to elect between them at any stage of the trial.Craft Refrigerating Machine Co. v. Quinnipiac BrewingCo., 63 Conn. 551, 29 A. 76. Under so liberal a procedure *Page 7 it would seem illogical to hold that the petitioner had lost his right to assert title in himself, merely because he had at one time made an inconsistent claim or admission in the mistaken pursuit of a nonexistent remedy.
In view of the general relaxation of the common law requirement of consistency in pleading, the Supreme Court of the United States has wisely observed that "at best this doctrine of election of remedies is a harsh, and now largely obsolete rule, the scope of which should not be extended, as it must be in order to reach the case at bar." Friederichsen v. Renard, 247 U.S. 207,213, 38 S. Ct. 450.
There is error, the judgment is set aside, and the cause remanded with direction to overrule the demurrer to the petitioner's remonstrance against the acceptance of the report of the committee.
In this opinion WHEELER, C.J., CURTIS and HAINES, JS., concurred.