¶1On Petition for Rehearing.
¶2In a petition for rehearing, counsel for appellant contends that the legal doctrines relating to election and res judicata have been erroneously applied, and an apparently logical argument has been adduced to the effect that it is impossible that both doctrines could be conclusive against the appellant in the same action. The basic premise of the petition is that, in order that there may-be a binding election, the party must be entitled to two different remedies; that they must be inconsistent; and that there must have been an unequivocal choice; whereas, in order to be precluded by the doctrine of res judicata, it is stated that the following requisites must exist: “(1) That there is a complete, actual identity between the things sued for in each action; (2) that the two causes of action must not only be consistent one with the other, but identical, a logical impossibility;- and (3) that the-parties to both actions must be the same.” The statement quoted is a paraphrase of the statement contained in Bouvier’s Law Dictionary and quoted in 34 Cyc. 1666, note 56. See also Freeman, Judgm. § 252. The second requisite, however, according to the above authori-ties, is not that the two causes of action must be consistent, but that there must be an identity of the cause of action involved in the previous proceeding and that involved in the present proceeding. The term is singular, not plural, as used by counsel. The doctrine of res judicata is not, except in unusual cases such as merger, employed for the purpose of preventing the separate litigation of separate and distinct causes of action. It is a well-established rule, however, that questions of fact which have actually been directly in issue in a former suit and *534have been judicially determined by a court of competent jurisdiction are conclusively settled so far as concerns the parties to that action, and cannot be litigated again between such parties or their privies in the same or a different cause of action. 23 Cyc. 1215 and authorities cited.
¶3Let us apply this principle to the instant case. The parties are the same; in the former suit there was an issue as to the terms of the contract; and the findings, which are in evidence in this case, establish that the issue was determined adversely to the present contention of the appellant; for the court found “that at the time of the giving to the defendant the option (exhibit 2) it was his (plaintiff’s and appellant’s) intention and purpose to sell said land, if said option was accepted, at the agreed price of twenty five dollars ($25) per acre, and that on the 21st day of November, 1914, when he executed and delivered the warranty deed (plaintiff’s exhibit A), it was his intention and purpose to transfer and convey the title therein described to the defendant, and at the agreed price of $25 per acre, or $8,000.” It was also found that the plaintiff knew that Newberry was negotiating a sale of the premises at a higher price. It is too clear for argument that the issues of fact relative to the contract between Newberry and Kallberg were proper subjects of litigation in the former action, that they were litigated therein, and that the parties are concluded by such former adjudication. Nemo bis vexa/ri debet pro eadem causa.
¶4Is there any inconsistency in the holding that the appellant is precluded both by the doctrine of res judicata and the doctrine of election? We think not. Bes judicata has to do with the cause of action or with some fact or issue involved in some former proceeding between the same parties, and operates to preclude its redetennination in a subsequent suit, even though the subsequent suit may be upon a different cause of action: whereas, the doctrine of election has to do with the legal means of enforcing a right arising out of a given transaction or set of facts; or, to attempt to state the doctrine more accurately, it involves nothing more or less than a choice of inconsistent rights arising out of the given transaction, together with the selection of the appropriate remedy, the latter being merely incidental. Thus, it may be both logically consistent and perfectly conformable to the rationale of both doctrines referred to that a suitor may be precluded from liti*535gating certain questions of fact by reason of having previously litigated them with his adversary, and also prevented from maintaining a subsequent action by reason of the reliance of his adversary upon his unequivocal choice to litigate the matters arising out of the transaction in a former proceeding, which was appropriate to give him adequate relief.
¶5So far as the doctrine of election itself is concerned, we are convinced that hard and fast rules cannot be laid down for its application without danger of being compelled to so apply them as to result in injustice in particular cases. The real basis for a binding election is estoppel; and if the election is held binding or not binding, depending upon whether or not the elements of an estoppel ate present, no injustice can result. In the present case the appellant first sought to avail himself of his right to rescind, and in the action brought litigated every issue that is material to the maintenance of his present action. His adversary not only relied upon his choice to the extent of meeting the issues presented; but, after the determination of the case, he dealt with others on the strength of the result. We are convinced that under the facts stated in the main opinion, and repeated here, the appellant should be and is estopped to maintain the action at bar. If the contract, as found in the previous suit to be, had not been performed and this action were brought for its breach, a different question would be presented.
¶6Many authorities are cited by appellant’s counsel, in which the doctrine of election had been unsuccessfully invoked; but a careful examination of them discloses that the doctrine was generally held not applicable, and consequently not efficacious to defeat a second suit, where the plaintiff had previously chosen a wholly inappropriate remedy and where he was defeated by reason of such choice. It appears here that the parties litigated their cause in full in the previous rescission suit, and that the court made findings on the merits against the plaintiff. Thus, it becomes a matter of little or no consequence that relief by way of rescission would have had to be denied for the additional reason that Ganske, the purchaser of the land, was not made a party.
¶7In addition to what has already been said in regard to the election of remedies, it would seem that a proper observance of the Code of Civil Procedure would require that a plaintiff in a civil action, brought *536for the redress of a particular wrong, should be compelled to obtain his redress in that action, especially where it would be unnecessary for him to amend his pleadings. It must be remembered that the prayer for relief is not an essential part of a pleading, and that the plaintiff herein could have obtained all the relief he now seeks under the original pleadings.
¶8The petition for a rehearing is denied.