OPINION
WOOD, Judge.
Plaintiff, applying for employment with Jones (J. W. Jones Construction Company), represented that he was eighteen years old. In fact, he was under sixteen years of age. Plaintiff was hired and was injured on the job. Plaintiff sued for worker’s compensation; approximately three months later he sued Jones in a tort action. Both suits are based on the same incident; the parties in both suits are identical, except the compensation insurer is an additional defendant in the compensation case. Both cases are assigned to the same trial judge. The principal issue, in this appeal, involves the appropriate remedy — whether plaintiff’s remedy is under the compensation statute or whether, because of plaintiff’s age, he may seek recovery in a tort action. We (1) outline the pertinent procedural history; discuss (2) the child labor law; (3) several asserted bars to a tort action; (4) the denial of plaintiff’s motion to dismiss his compensation claim; and (5) comment on the delays in this case.
Procedural History
Plaintiff filed the tort action almost two months after the answer was filed in the compensation case. The complaint in the tort action was filed October 24, 1979. On October 29, 1979 plaintiff moved for a stay in the compensation proceedings pending a resolution of the issues in the tort action. This motion was denied May 16, 1980.
On November 29, 1979 Jones moved to dismiss the tort action or, in the alternative, to stay the tort action pending a resolution of the issues in the compensation case. On February 28, 1980 the trial court stayed the tort case until further order of the court.
On November 21,1980 plaintiff moved to dismiss the compensation case; defendants in the compensation case opposed dismissal. An answer having been filed in the compensation case, an order of the court was required for a dismissal. Rule of Civ.Proc. 41(a), N.M.S.A. 1978 (1980 Repl.Pamph.). On March 3,1981 the motion to dismiss was denied.
On February 1, 1982 plaintiff sought an amendment to the order of March 3, 1981. On May 13, 1982 an amended order was entered in both the compensation case and the tort case. This order contains certain findings of fact. This order (1) again denied plaintiff’s motion to dismiss the compensation case and (2) concluded that plaintiff’s exclusive remedy was “in workmen’s compensation and not in tort.”
Plaintiff sought, and this Court granted, an interlocutory appeal from the amended order of May 13, 1982.
Child Labor Law
At the time of plaintiff’s on-the-job injury, he was fifteen years and nine months old. The maneuvering between the parties as to whether the compensation or tort case should be tried first bottoms on the question of whether plaintiff’s remedy is limited to a compensation claim.
It not being disputed that plaintiff’s injury occurred while at work for Jones, ordinarily plaintiff would be limited to a compensation claim. See §§ 52-1-8 and 52-1-9, N.M.S.A. 1978. To avoid the exclusivity provisions of the compensation statute, plaintiff relies on his age at the time of injury. Plaintiff points out that he was under sixteen years of age at the time of his injury. Plaintiff asserts that his employment was in violation of § 50-6-4, N.M.S.A. 1978 and, in his brief, identifies three asserted violations of § 50-6-4, supra.
Plaintiff contends that because of these violations Maynerich v. Little Bear Enterprises, Inc., 82 N.M. 650, 485 P.2d 984 (Ct.App.1971), is applicable. Maynerich, supra, points out that (1) § 52-1-16, N.M.S.A. 1978 (1982 Cum.Supp.) defines workman to include “any person” who has entered into employment or works under a contract of service with an employer; (2) the New Mexico Worker’s Compensation Act has no specific language bringing illegally employed minors within its terms; (3) § 50-6-4, supra, prohibits the employment of children under the age of sixteen in certain occupations; (4) employment in violation of § 50-6-4, supra, is at least voidable; and (5) the employer may not rely on the compensation act in a suit by an illegally employed minor. Maynerich, supra, held that “an illegally employed minor may pursue a common law action.”
Defendants contend that Maynerich, supra, was improperly decided and should be overruled.
The record is insufficient to reach these contentions; specifically, a factual predicate is lacking to reach the legal question of the applicability of Maynerich, supra.
1. The findings of the trial court, contained in the amended order, were findings based on “facts stipulated to by the parties”. Plaintiff’s effort to utilize deposition testimony is improper; the trial court refused to consider the depositions; the findings are based on the stipulated facts. The deposition testimony will not be considered. See Fleming v. Gulf Oil Corporation, 547 F.2d 908 (10th Cir. 1977); compare Plumbers Specialty Supply v. Enterprise Products, 96 N.M. 517, 632 P.2d 752 (Ct.App.1981).
2. In violation of R.Civ.App. 9(d), N.M. S.A. 1978 (1982 Cum.Supp.), plaintiff’s brief asserts certain “facts” without references either to trial court findings or to proof of the asserted facts. Plaintiff could not comply with this rule because the asserted facts are not included in the trial court’s findings and there has been no evidentiary hearing. Inasmuch as the only “facts” in this appeal are those found by the trial court on the basis of the stipulation of the parties, plaintiff’s asserted facts will not be considered.
The issues of the applicability of Maynerich, supra, and the continued viability of that decision depend on whether there has been a violation of § 50-6-4, supra. The trial court has not found a violation of that statute; a violation cannot be inferred from the findings made and neither party has requested a finding as to a violation.
At this point in the proceedings, this Court is asked to give an advisory opinion as to the law if § 50-6-4, supra, has been violated. We decline to do so. See Bell Telephone Laboratories v. Bureau of Revenue, 78 N.M. 78, 428 P.2d 617 (1966).
Bars to an Option on Plaintiff’s Part
Even if Maynerich, supra, should be applicable, so that plaintiff originally had the option of proceeding under either the compensation or tort claim, see generally 1C Larson’s Workmen’s Compensation Law § 47.52 (1980), the option could be foreclosed.
Defendants claim that if plaintiff had an option in this case, the option was foreclosed on any one of four grounds. Those grounds are election of remedies, waiver, estoppel and ratification.
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OPINION
WOOD, Judge.
Plaintiff, applying for employment with Jones (J. W. Jones Construction Company), represented that he was eighteen years old. In fact, he was under sixteen years of age. Plaintiff was hired and was injured on the job. Plaintiff sued for worker’s compensation; approximately three months later he sued Jones in a tort action. Both suits are based on the same incident; the parties in both suits are identical, except the compensation insurer is an additional defendant in the compensation case. Both cases are assigned to the same trial judge. The principal issue, in this appeal, involves the appropriate remedy — whether plaintiff’s remedy is under the compensation statute or whether, because of plaintiff’s age, he may seek recovery in a tort action. We (1) outline the pertinent procedural history; discuss (2) the child labor law; (3) several asserted bars to a tort action; (4) the denial of plaintiff’s motion to dismiss his compensation claim; and (5) comment on the delays in this case.
Procedural History
Plaintiff filed the tort action almost two months after the answer was filed in the compensation case. The complaint in the tort action was filed October 24, 1979. On October 29, 1979 plaintiff moved for a stay in the compensation proceedings pending a resolution of the issues in the tort action. This motion was denied May 16, 1980.
On November 29, 1979 Jones moved to dismiss the tort action or, in the alternative, to stay the tort action pending a resolution of the issues in the compensation case. On February 28, 1980 the trial court stayed the tort case until further order of the court.
On November 21,1980 plaintiff moved to dismiss the compensation case; defendants in the compensation case opposed dismissal. An answer having been filed in the compensation case, an order of the court was required for a dismissal. Rule of Civ.Proc. 41(a), N.M.S.A. 1978 (1980 Repl.Pamph.). On March 3,1981 the motion to dismiss was denied.
On February 1, 1982 plaintiff sought an amendment to the order of March 3, 1981. On May 13, 1982 an amended order was entered in both the compensation case and the tort case. This order contains certain findings of fact. This order (1) again denied plaintiff’s motion to dismiss the compensation case and (2) concluded that plaintiff’s exclusive remedy was “in workmen’s compensation and not in tort.”
Plaintiff sought, and this Court granted, an interlocutory appeal from the amended order of May 13, 1982.
Child Labor Law
At the time of plaintiff’s on-the-job injury, he was fifteen years and nine months old. The maneuvering between the parties as to whether the compensation or tort case should be tried first bottoms on the question of whether plaintiff’s remedy is limited to a compensation claim.
It not being disputed that plaintiff’s injury occurred while at work for Jones, ordinarily plaintiff would be limited to a compensation claim. See §§ 52-1-8 and 52-1-9, N.M.S.A. 1978. To avoid the exclusivity provisions of the compensation statute, plaintiff relies on his age at the time of injury. Plaintiff points out that he was under sixteen years of age at the time of his injury. Plaintiff asserts that his employment was in violation of § 50-6-4, N.M.S.A. 1978 and, in his brief, identifies three asserted violations of § 50-6-4, supra.
Plaintiff contends that because of these violations Maynerich v. Little Bear Enterprises, Inc., 82 N.M. 650, 485 P.2d 984 (Ct.App.1971), is applicable. Maynerich, supra, points out that (1) § 52-1-16, N.M.S.A. 1978 (1982 Cum.Supp.) defines workman to include “any person” who has entered into employment or works under a contract of service with an employer; (2) the New Mexico Worker’s Compensation Act has no specific language bringing illegally employed minors within its terms; (3) § 50-6-4, supra, prohibits the employment of children under the age of sixteen in certain occupations; (4) employment in violation of § 50-6-4, supra, is at least voidable; and (5) the employer may not rely on the compensation act in a suit by an illegally employed minor. Maynerich, supra, held that “an illegally employed minor may pursue a common law action.”
Defendants contend that Maynerich, supra, was improperly decided and should be overruled.
The record is insufficient to reach these contentions; specifically, a factual predicate is lacking to reach the legal question of the applicability of Maynerich, supra.
1. The findings of the trial court, contained in the amended order, were findings based on “facts stipulated to by the parties”. Plaintiff’s effort to utilize deposition testimony is improper; the trial court refused to consider the depositions; the findings are based on the stipulated facts. The deposition testimony will not be considered. See Fleming v. Gulf Oil Corporation, 547 F.2d 908 (10th Cir. 1977); compare Plumbers Specialty Supply v. Enterprise Products, 96 N.M. 517, 632 P.2d 752 (Ct.App.1981).
2. In violation of R.Civ.App. 9(d), N.M. S.A. 1978 (1982 Cum.Supp.), plaintiff’s brief asserts certain “facts” without references either to trial court findings or to proof of the asserted facts. Plaintiff could not comply with this rule because the asserted facts are not included in the trial court’s findings and there has been no evidentiary hearing. Inasmuch as the only “facts” in this appeal are those found by the trial court on the basis of the stipulation of the parties, plaintiff’s asserted facts will not be considered.
The issues of the applicability of Maynerich, supra, and the continued viability of that decision depend on whether there has been a violation of § 50-6-4, supra. The trial court has not found a violation of that statute; a violation cannot be inferred from the findings made and neither party has requested a finding as to a violation.
At this point in the proceedings, this Court is asked to give an advisory opinion as to the law if § 50-6-4, supra, has been violated. We decline to do so. See Bell Telephone Laboratories v. Bureau of Revenue, 78 N.M. 78, 428 P.2d 617 (1966).
Bars to an Option on Plaintiff’s Part
Even if Maynerich, supra, should be applicable, so that plaintiff originally had the option of proceeding under either the compensation or tort claim, see generally 1C Larson’s Workmen’s Compensation Law § 47.52 (1980), the option could be foreclosed.
Defendants claim that if plaintiff had an option in this case, the option was foreclosed on any one of four grounds. Those grounds are election of remedies, waiver, estoppel and ratification. The pertinent findings of the trial court are: (a) that plaintiff sued for compensation benefits some three months before he filed the tort claim; (b) that Jones and its compensation insurer paid compensation benefits for twelve weeks; and (c) Jones and the compensation insurer paid medical benefits of approximately $2,300.00. The remaining trial court finding, not relied on by defendants, states: “It is contended by the Plaintiff that at the time he received the workmen’s compensation benefits and other benefits [the medical benefits] .. .he was not aware, nor did he know the sums were in fact workmen’s compensation benefits.”
1. Election of Remedies
“[T]he doctrine of election of remedies is not a doctrine of substantive law”; rather, it is a rule of judicial administration found on the desire to eliminate multiple litigation of claims arising out of the same subject matter. Honaker v. Ralph Pool’s Albuquerque Auto Sales, Inc., 74 N.M. 458, 394 P.2d 978 (1964). The doctrine means “ ‘if a party has two inconsistent existing remedies on his cause of action and makes choice of one, he is precluded from thereafter pursuing the other.’ ” Franciscan Hotel Co. v. Albuquerque Hotel Co., 37 N.M. 456, 24 P.2d 718 (1933). The doctrine is based on principles of estoppel. Franciscan Hotel Co., supra.
The compensation and tort claims are inconsistent remedies. Whether the doctrine of election of remedies applies depends upon whether plaintiff had made a choice of one of these remedies. “[T]he filing of a complaint seeking relief of one sort is not an irrevocable election of remedies precluding the granting of relief of another kind.” State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). “[Commencement of the action is not of itself a conclusive choice of remedies.” Honaker v. Ralph Pool’s Albuquerque Auto Sales, Inc., supra. The acceptance of compensation and medical benefits by plaintiff cannot be held to be an election by plaintiff to pursue a remedy under the compensation statute if he was unaware that he was receiving benefits under the compensation statute.
The trial court’s findings must support the trial court’s conclusion. In re Will of Carson, 87 N.M. 43, 529 P.2d 269 (1974). A judgment cannot be sustained unless the conclusion upon which it rests finds support in one or more findings of fact. Thompson v. H.B. Zachry Co., 75 N.M. 715, 410 P.2d 740 (1966).
Findings that plaintiff filed the compensation claim prior to filing the tort claim and that plaintiff received compensation and medical benefits do not support the conclusion that plaintiff’s exclusive remedy was under the compensation statute, under the theory that plaintiff had elected his remedy. The defect is the absence of a finding, or evidence, that plaintiff had chosen compensation benefits as his remedy. This result is not contrary to Llewellyn v. Smith, 593 P.2d 771 (Okl.1979), a case relied upon by defendants. In Llewellyn, supra, the plaintiff had obtained a compensation award and, after receiving the award, brought a negligence action; here, plaintiff is seeking to dismiss his compensation claim and avoid pursuing it to a conclusion.
2. Waiver and Estoppel
“[B]oth waiver and estoppel require knowledge of the facts by the person against whom they are asserted.” Maynerich v. Little Bear Enterprises, Inc., supra. There is neither a trial court finding nor evidence that plaintiff had such knowledge; rather, the trial court found that plaintiff contended he lacked such knowledge. Until there is a finding that plaintiff had such knowledge, the conclusion that the compensation statute was plaintiff’s exclusive remedy, under a theory of waiver or estoppel, is not supported by the trial court’s findings. See Chavez v. Lectrosonics, 93 N.M. 495, 601 P.2d 728 (Ct.App.1979); C & H Const. & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979).
3. Ratification
Defendants’ theory of ratification is that by “actions, conduct or expressed words” plaintiff ratified the allegedly illegal employment contract, but cite no authority in support of this contention.
“It is indispensable to ratification that the party held thereto shall have had full knowledge of all the material facts concerning the transaction.” See-Tee Mining Corporation v. National Sales, Inc., 76 N.M. 677, 417 P.2d 810 (1966). After possessing the requisite knowledge, the person sought to be held to a ratification must act with the intention of ratifying the voidable transaction. C & H Const. & Paving Co. v. Citizens Bank, supra. Plaintiff’s knowledge and intent are factual matters. There is neither a trial court finding nor evidence concerning plaintiff’s knowledge and intent. Until there are findings as to the requisites for ratification, the conclusion that the compensation statute was plaintiff’s exclusive remedy, under a theory of ratification, is not supported by the trial court’s findings.
Denial of Plaintiff’s Motion to Dismiss the Compensation Claim
Defendants’ answer to the compensation claim asserted (a) that plaintiff was es-topped to deny that he was an adult and (b) that plaintiff fraudulently induced the contract of employment. Plaintiff contends these are inconsistent defenses. We need not decide whether the defenses are inconsistent; rather to decide plaintiff’s contention, we assume an inconsistency. Rule of Civ.Proc. 8(e)(2), N.M.S.A. 1978 (1980 Repl. Pamph.) states: “A party may * * * state as many separate * * * defenses as he has regardless of consistency * *
Plaintiff contends that defendants’ inconsistent defenses introduce the “ ‘variable convenience defense’ that because plaintiff seeks to dismiss the compensation claim and because one of the defenses— fraud in inducing the employment — is consistent with no recovery under the compensation act on a theory of no employment contract “the Court should have allowed the dismissal of the * * * Compensation action.” The contention is frivolous. Defendants are not to be penalized for asserting a defense authorized by the Rules of Civil Procedure.
The dismissal sought by plaintiff required an “order of the court and upon such terms and conditions as the court deems proper.” Rule of Civ.Proc. 41(a)(2), supra. We do not know the precise basis on which the trial court denied plaintiff’s motion to dismiss the compensation claim. The transcript of the hearing on the motion to dismiss, which consists of arguments of counsel, together with trial court orders on the motions for stays, shows a concern of the trial court that both suits remain pending until the question of the proper remedy is finally decided. If it should be decided that plaintiff’s remedy is under the compensation statute and the compensation claim had been dismissed upon plaintiff’s motion (a voluntary dismissal), plaintiff might be banned from seeking compensation benefits in an amount in excess of the benefits already paid by defendants. See § 52-1-31, N.M.S.A. 1978; Swallows v. City of Albuquerque, 61 N.M. 265, 298 P.2d 945 (1956).
The trial court did not err in denying plaintiff’s motion to dismiss his compensation claim.
Delays
This litigation commenced with a compensation claim filed July 19, 1979. It has proceeded at a leisurely pace. The interlocutory appeal became at issue .in this Court on July 28,1982. Whether plaintiff is or is not entitled to compensation benefits is yet to be decided. We direct the attention of the trial court and counsel to § 52-1-35, N.M.S.A. 1978 and Perez v. Intern. Minerals & Chemical Corp., 95 N.M. 628, 624 P.2d 1025 (Ct.App.1981). Upon remand we suggest prompt attention be given to the compensation aspect of this litigation.
That part of the amended order of the trial court, which denied plaintiff’s motion to dismiss the compensation claim, is affirmed. That part of the amended order, which concluded that plaintiff’s exclusive remedy is under the compensation act, is reversed. The cause-is remanded with instructions to schedule a prompt evidentiary hearing on the factual issues herein, specifically on (1) the alleged violation of the child labor law; (2) election of remedies; (3) waiver; (4) estoppel; and (5) ratification. The stay of the tort action, ordered February 28, 1980, remains in effect until the question of the appropriate remedy has been decided. Any party may seek an interlocutory appeal of the trial court’s decision, entered after an evidentiary hearing, as to the appropriate remedy.
Defendants are to pay one-half of the appellate costs. One-half of the cost of the reporter’s transcript is to be paid to the Clerk of the District Court and one-half of the appellate filing fee is to be paid to the Clerk of the Court of Appeals.
IT IS SO ORDERED.
•DONNELLY, J., concurs. SUTIN, J., dissenting.