For the purposes of this appeal it may be conceded, without deciding, that the testimony of Lee Grier, offered as evidence for the plaintiff at the trial of this action, viewed in the light most favorable to the plaintiff, in accordance with the rule applicable to a motion for judgment as of nonsuit under the statute, C. S., 567, was sufficient to support the allegations of the complaint that the plaintiff sold and delivered to the defendants the lumber and building'material described in the complaint and used in the construction of the house on the lot owned by the defendants, and that the defendants promised and agreed to pay plaintiff for said lumber and building materials.
Notwithstanding apparent inconsistencies and even contradictions in the evidence for the plaintiff, where the evidence in any aspect is sufficient to support the contentions of the plaintiff, it should ordinarily be submitted to the jury, and in such case it is error to dismiss the action by judgment as of nonsuit on motion of the defendant. Moore v. Ins. Co., 193 N. C., 539, 137 S. E., 580.
However, in this case, the evidence for the plaintiff shows that after the plaintiff had learned that the house described in the complaint had been constructed by W. M. Wood for the defendants under a contract for a turnkey job, with full knowledge of all the terms and provisions of said contract, the plaintiff elected to give notice as a subcontractor to the defendants as owners of the property of its claim against W. M. Wood for the lumber and building material, which it had sold and delivered to the said W. M. Wood, and which the said W. M. Wood had used in the performance of his contract with the defendants. This notice was given to the defendants on 25 November, 1936. The plaintiff thereby asserted a lien on the property of the defendants as a subcontractor under the provisions of C. S., 2137. By giving the notice it sought to enforce said lien in accordance with the provisions of C. S., 2438.
After the plaintiff had given defendants notice of its claim of a lien on their property as a subcontractor it learned that the amount due by the defendants to W. M. Wood, as contractor at the date of the *719notice, was not sufficient to pay its claim in full. Thereafter, to wit, on 30 November, 1936, the plaintiff undertook to assert a lien on defendant’s property as a contractor or furnisher of materials under C. S., 2433, by filing notice and claim under the provisions of C. S., 2469. Having elected to file a notice of a' lien as a subcontractor under the provisions of C. S., 2437, the plaintiff was estopped from asserting a lien under C. S., 2433.
In Baker v. Edwards, 176 N. C., 229, 97 S. E., 16, it is said by Walker, J.':
“An election of remedies is defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts, and it is said in the Scottish law to be based on the principle that a man shall not be allowed to approbate or reprobate. His taking the one or making use of it will exclude or bar the prosecution of the other. The doctrine is generally regarded as being an application of the law of estoppel upon the theory that a party cannot, in the assertion or prosecution of his rights, occupy inconsistent positions.”
This principle is applicable to the facts shown by the evidence for the plaintiff in the instant case. Accordingly the judgment dismissing the action as of nonsuit is
Affirmed.