Abbadessa v. Puglisi , 101 Conn. 1 ( 1924 )

Both parties presented this controversy upon the theory that a mechanic's lien would not lie for the price of the lighting fixtures involved in it, and, had the majority of the court proceeded upon the basis of the case so made, I certainly would have no quarrel with them upon that score. But to adopt that theory as the law of this State, I can only regard as an unnecessary narrowing of a beneficent statute and as running counter to the decision and opinion in Balch v. Chaffee, 73 Conn. 318,47 A. 327. For the rest, the law as to election of remedies stated in the majority opinion is, I have no doubt, sound, but it is hardly applicable here. The claimant chose to substitute for his title to the goods a lien upon the building, and so, as was said in Crompton v. Beach, 62 Conn. 25, 38, 25 A. 446, of the issue then before the court: "This is not a question of remedy, but of right." Upon such a situation, the doctrine of election of remedies has no bearing, but the solution lies along the lines of waiver. I do not think, however, that this would lead to any other result than that reached by the majority of the court, for I incline to believe that a waiver is not irrevocable unless supported by a consideration or accepted or acted upon by the adverse party.