Miner, J.
In the court below this case was tried by the court without a jury and judgment rendered in favor of the plaintiff. The case was before this court on a former appeal by the plaintiff, and the case was reversed, and a new trial ordered, 16 Utah, 177.
The plaintiff brought this action to recover a balance due upon a contract for the purchase price of a heater sold to the defendant. The defendant denied the allegations of the-complaint; denied that plaintiff performed his contract as alleged in the complaint, and denied the indebtedness claimed. In his cross complaint the defendant alleged the violation of the contract sued upon by the plaintiff, and claimed damages by reason of plaintiff’s breach and non-compliance therewith.
On the first trial counsel for the plaintiff moved that defendant be required to elect upon which defense he would rely, either a rescission of the contract and a recovery of the money paid thereon, or recouping in damages for a failure of the heater to meet the requirements of the guaranty under which it was sold. Thereupon the defendant, by his counsel elected to rely upon'a rescission of the contract and waived all claims for damages, but without amending the answer or cross-complaint. The case was tried and the defendant recovered a judgment against the plaintiff for $1,627.47, in reliance upon a rescission of the contract.
The court below, on the first trial, found that the plaintiff did not comply with the contract; that defendant never accepted the heating apparatus; that the defendant [245]*245before the commencement of the action notified the plaintiff that the heating apparatus was subject to its orders, and demanded a return of the money paid. The judgment was based upon a non-acceptance of the heater and the election of the defendant to rescind the contract and to demand back the money paid upon it, without any allegation in the complaint upon which such a recovery could be had, and this court in 16 Utah, 177, held, “That the defendant accepted the heater and had no right to elect to rescind the contract, and that the plaintiff must recover, if at all, damages for a breach of the contract. In finding that the defendant did not accept the heater, and in basing its judgment upon the assumption that the contract was rescinded, we must hold that the court erred. The defendant should have been held to rely upon the warranty contained in the contract, and confined to a recovery for its breach,” and directed a new trial:
Upon the second trial in the court below, defendant moved to amend by filing a new verified answer and counter claim. In this proposed answer and counter claim defendant denied that the plaintiff had performed its agreement contained in the contract; denied the indebtedness, and claimed a violation of the agreement and damages resulting therefrom. The court refused to permit the defendant to file said amended answer and counter claim, but held as follows: “It appearing to the court that the defendant has heretofore elected to defend against the contract set up in the plaintiff’s complaint by way of rescission, and the answer now presented to the court being in opposition to such election, therefore it is ordered-that all of such answer, except that part relating to set-offs and counter claims against the original contract, and so much of the answer denying the allegations of the complaint be, and the same are hereby stricken out,” to all of which the defendant excepted.
[246]*246The questions to be determined are, 1st, did the court err in refusing the proposed amendments; 2d, by making the election on the former trial and waiving all claims for damages, and relying upon a rescission of the contract, is the defendant estopped from setting up his claim for damages for a violation of the contract ?
Upon examination of the original complaint and cross-complaint it will be seen that no rescission of the contract was claimed or plead, and no return of the heater offered. When the question of a breach of the contract and damages was eliminated, but little, if anything was left with which to proceed to trial except the bare denial of plaintiff’s claim.
Before the court, could order an election, something must be shown to justify it from the pleadings. The complaint did not present a case where the defendant was required to elect. By voluntarily electing to rely upon a rescission of the contract and waiving all claims for damages, without any order requiring such election, the defendant, by his counsel, deprived himself of any defense. As we held upon the former appeal: “It was not in the power of the defendant to take advantage of the condition and regard the title as in the plaintiff and rescind the contract, or maintain he had not accepted the heater, and and refuse to pay for it for the same reason. The plaintiff did not claim the benefit of the condition, but elected to treat the title as in the defendant, and bring suit for the balance due on the purchase price. The defendant relied upon the contract in his cross-complaint and alleged damages amounting to $3,721.48, for its breach, but on the trial he expressly elected to rely upon a rescission of the contract, and to waive any claim for damages, without amending his cross-complaint.”
Section 2972, Rev. Stat. Utah, 1898, provides: “The [247]*247defendant may set forth by answer as many defenses and counterclaims, legal or equitable, or both as he may have. They must be separately stated and the several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.”
Under a similar statute in California, it is held that a defendant may plead separately as many defenses, under proper circumstances as he pleases; each must be consistent .with itself, but need not be consistent with the others. Buhne v. Corbett, 43 Cal. 264; Bell v. Brown, 22 Cal. 672; Milton v. Cleveland, 30 Cal. 192.
It is laid down in Pomeroy’s Code Pleading (3d ed.) Sec. 722, that “Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of inconsistency.” And the author cites many authorities, but states that a different rule prevails in many states.
In Kelley v. Bernheimer, 3 N. Y. Sup. Ct., 140, it is held that the court will not compel an election between the defenses unless they are so far inconsistent that both cannot properly co-exist in the same transaction.
In Utah it has been held that a defendant, under the code, is permitted to plead as many defenses as he may have if, when the answer is verified, they be not contradictory. Burnham v. Call, 2 Utah 433.
Under Sec. 723 Pomeroy’s Rem. many examples are stated wherein a different defense may be suffered,- such as in ejectment; general denial and statute of limitations, or general denial and confession and avoidance; in an ac[248]*248tion on a note denial of plaintiff’s ownership of the note and payment is permissible; so, denial, statute of limitations and release are not inconsistent in the answer; in assault and battery, general denial, self.
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Miner, J.
In the court below this case was tried by the court without a jury and judgment rendered in favor of the plaintiff. The case was before this court on a former appeal by the plaintiff, and the case was reversed, and a new trial ordered, 16 Utah, 177.
The plaintiff brought this action to recover a balance due upon a contract for the purchase price of a heater sold to the defendant. The defendant denied the allegations of the-complaint; denied that plaintiff performed his contract as alleged in the complaint, and denied the indebtedness claimed. In his cross complaint the defendant alleged the violation of the contract sued upon by the plaintiff, and claimed damages by reason of plaintiff’s breach and non-compliance therewith.
On the first trial counsel for the plaintiff moved that defendant be required to elect upon which defense he would rely, either a rescission of the contract and a recovery of the money paid thereon, or recouping in damages for a failure of the heater to meet the requirements of the guaranty under which it was sold. Thereupon the defendant, by his counsel elected to rely upon'a rescission of the contract and waived all claims for damages, but without amending the answer or cross-complaint. The case was tried and the defendant recovered a judgment against the plaintiff for $1,627.47, in reliance upon a rescission of the contract.
The court below, on the first trial, found that the plaintiff did not comply with the contract; that defendant never accepted the heating apparatus; that the defendant [245]*245before the commencement of the action notified the plaintiff that the heating apparatus was subject to its orders, and demanded a return of the money paid. The judgment was based upon a non-acceptance of the heater and the election of the defendant to rescind the contract and to demand back the money paid upon it, without any allegation in the complaint upon which such a recovery could be had, and this court in 16 Utah, 177, held, “That the defendant accepted the heater and had no right to elect to rescind the contract, and that the plaintiff must recover, if at all, damages for a breach of the contract. In finding that the defendant did not accept the heater, and in basing its judgment upon the assumption that the contract was rescinded, we must hold that the court erred. The defendant should have been held to rely upon the warranty contained in the contract, and confined to a recovery for its breach,” and directed a new trial:
Upon the second trial in the court below, defendant moved to amend by filing a new verified answer and counter claim. In this proposed answer and counter claim defendant denied that the plaintiff had performed its agreement contained in the contract; denied the indebtedness, and claimed a violation of the agreement and damages resulting therefrom. The court refused to permit the defendant to file said amended answer and counter claim, but held as follows: “It appearing to the court that the defendant has heretofore elected to defend against the contract set up in the plaintiff’s complaint by way of rescission, and the answer now presented to the court being in opposition to such election, therefore it is ordered-that all of such answer, except that part relating to set-offs and counter claims against the original contract, and so much of the answer denying the allegations of the complaint be, and the same are hereby stricken out,” to all of which the defendant excepted.
[246]*246The questions to be determined are, 1st, did the court err in refusing the proposed amendments; 2d, by making the election on the former trial and waiving all claims for damages, and relying upon a rescission of the contract, is the defendant estopped from setting up his claim for damages for a violation of the contract ?
Upon examination of the original complaint and cross-complaint it will be seen that no rescission of the contract was claimed or plead, and no return of the heater offered. When the question of a breach of the contract and damages was eliminated, but little, if anything was left with which to proceed to trial except the bare denial of plaintiff’s claim.
Before the court, could order an election, something must be shown to justify it from the pleadings. The complaint did not present a case where the defendant was required to elect. By voluntarily electing to rely upon a rescission of the contract and waiving all claims for damages, without any order requiring such election, the defendant, by his counsel, deprived himself of any defense. As we held upon the former appeal: “It was not in the power of the defendant to take advantage of the condition and regard the title as in the plaintiff and rescind the contract, or maintain he had not accepted the heater, and and refuse to pay for it for the same reason. The plaintiff did not claim the benefit of the condition, but elected to treat the title as in the defendant, and bring suit for the balance due on the purchase price. The defendant relied upon the contract in his cross-complaint and alleged damages amounting to $3,721.48, for its breach, but on the trial he expressly elected to rely upon a rescission of the contract, and to waive any claim for damages, without amending his cross-complaint.”
Section 2972, Rev. Stat. Utah, 1898, provides: “The [247]*247defendant may set forth by answer as many defenses and counterclaims, legal or equitable, or both as he may have. They must be separately stated and the several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.”
Under a similar statute in California, it is held that a defendant may plead separately as many defenses, under proper circumstances as he pleases; each must be consistent .with itself, but need not be consistent with the others. Buhne v. Corbett, 43 Cal. 264; Bell v. Brown, 22 Cal. 672; Milton v. Cleveland, 30 Cal. 192.
It is laid down in Pomeroy’s Code Pleading (3d ed.) Sec. 722, that “Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of inconsistency.” And the author cites many authorities, but states that a different rule prevails in many states.
In Kelley v. Bernheimer, 3 N. Y. Sup. Ct., 140, it is held that the court will not compel an election between the defenses unless they are so far inconsistent that both cannot properly co-exist in the same transaction.
In Utah it has been held that a defendant, under the code, is permitted to plead as many defenses as he may have if, when the answer is verified, they be not contradictory. Burnham v. Call, 2 Utah 433.
Under Sec. 723 Pomeroy’s Rem. many examples are stated wherein a different defense may be suffered,- such as in ejectment; general denial and statute of limitations, or general denial and confession and avoidance; in an ac[248]*248tion on a note denial of plaintiff’s ownership of the note and payment is permissible; so, denial, statute of limitations and release are not inconsistent in the answer; in assault and battery, general denial, self. defense, and defense of possession are not inconsistent; in slander, denial and justification are not inconsistent; in trespass to lands the answer may deny the title and plead license; in an action for services the answer may state general denial, payment and set off. Welch v. Seligman, 25 N. Y. Supp. 363.
But a party cannot take one of two contradictory positions and after being defeated in one choose the other remedy.
A party may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. He is not permitted to make a second election, when he has once elected. Morris v. Rexford, 18 N. Y. 552; Thompson v. Howard, 31 Mich. 309; McNutt v. Hilkins, 27 N. Y. Supp. 1047; Greton v. Smith, 33 N. Y. 245; Strong v. Strong, 102 N. Y. 69; 7 Enc. Pl. & Pr. pp. 364 and 361, and cases cited; Bryan Brown Shoe Co. v. Block, 52 Ark. 458; Rodermund v. Clark, 46 N. Y. 354; Fowler v. Bank, 4 L. R. A. 145; Robb v. Vos, 155 U. S. 13; Hale v. Rice, 124 Mass. 292; Metcalf v. Williams, 144 Mass. 452.
The election on the part of the defendant’s attorney to waive all claims for damages, and to rely for his defense upon a rescission of the contract, deprived the defendant of his defense to the action and was wholly unnecessary [249]*249and uncalled for under the pleadings. The question of rescission was not within the issues. By such election the defendant was attempting to pursue a remedy to which he was not entitled under his pleadings, and he could obtain no legal satisfaction therefrom.
It was said in Fifield v. Edwards, 39 Mich. 264, that “ Estoppel from asserting a claim excluded from a former suit cannot apply where it was not within the issue in that suit and there was therefore no opportunity to establish it.”
In the matter of Van Norman, 41 Minn. 494, it was held, that “A mere attempt to claim a right or pursue a remedy to which a party is not entitled, and without obtaining any legal satisfaction therefrom, will not deprive him of the benefit of a right or remedy which he originally had to claim or resort to. The doctrine of election between inconsistent rights or remedies has no application to such a case.”
This doctrine is sustained by numerous authorities. 7 Enc. Pl. & Pr. p. 366; Bunch v. Grave et al., 111 Ind. 351; Smith v. Bricker, 86 Iowa, 285; McLaughlin v. Austin, 104 Mich. 489; Kingsbury v. Kettle, 90 Mich. 476; Wells, Fargo & Co. v. Robison, 13 Cal. 134; Elliott v. Collins, 55 Pac. Rep. 301; McNutt v. Hilkins, 80 Hun. 235.
The act of the defendant in choosing to proceed to trial upon an issue not raised by the pleadings, and in which a recovery was impossible, deserves criticism, yet we cannot see our course sufficiently clear, under the authorities, to deny him a right to be heard upon the issues as framed by the proposed amended pleading upon which he never has had a trial, because he attempted to claim a right or pursue a remedy to which he was not entitled.
The case is remanded with directions to the trial court [250]*250to vacate and set aside the judgment, grant a new trial, and allow the amendments to the pleadings as proposed, upon such terms as may be proper. I concur in reversing and remanding the case and in granting a new trial.
Bartch, C. J.