I dissent from the majority opinion. I cannot agree that the act of Woody and Carter, in accepting from Wheelock the amount of the consideration received by him, constituted an election of remedies so as to bar their right to recover the difference between such sum and the amount of the consideration paid by them to their immediate warrantor. If, as stated in the majority opinion, they had the right to sue either one or all of the warrantors, then there are no such inconsistent alternative remedies as would put them to an election. The doctrine of election of remedies does not apply where the remedies open to a party are consistent and concurrent as in the instant case. As I understand the rule, it is only when a party must choose between inconsistent coexistent remedies for the enforcement of his right that an election and prosecution of one remedy will bar his, right to resort to the other, and I doubt even in such a case if the collection of part of the amount due a warrantee from a remote warrantor without suit would be an election of remedies, even though the inconsistency existed which would, in case of a suit, bring it under the rule, unless estoppel in pais should arise. Nor do I concur in that part of the majority opinion wherein the position is taken that the act of Woody and Carter in accepting the $150 from a remote warrantor was an accord and satisfaction of their entire claim. They were entitled, according to the majority opinion, to recover the highest amount which had been paid to any warrantor, immediate or remote, which would entitle them, before their claim was fully *Page 875 satisfied, to have a sum equal to the full amount of the consideration paid by them. The record does not show that they accepted the $150 in full of their claim, and the burden was upon appellants herein to show that fact, as well as the accord. I concur in the statement that they are entitled to only one settlement, but insist that a payment of a part of what they are entitled to recover is not a settlement in any sense, unless it clearly appears that the receipt of a lesser sum has been accepted by them as such. It is my opinion that they had the right to call upon Wheelock, a remote warrantor, for whatever sum might have been recovered from him by suit, and, if paid without suit, then to demand of their immediate warrantors and bring an action to recover from them any overplus to which they were entitled under the rules announced in the majority opinion. Their act in collecting the $150 from Wheelock cannot amount to an estoppel because the intermediate warrantors could not have collected any greater sum of him, and their position is all the better by reason of such act on the part of appellees in that it saves them the expense and trouble of interpleading him in the action. Rawle on Cov. of Title (5th Ed.) 214; King v. Kerr, 5 Ohio, 155, 22 Am.Dec. 777; 15 Cyc. pp. 260, 261, notes 57, 58, and 59; 7 Encyc. Pl. Pr. 361-363.
There being no element of estoppel, no accord or satisfaction, and no necessity for an election of remedies, I do not concur.