Gregg contends that under the election of remedies doctrine, the seller cannot both rescind the contract and recover damages for its breach. Is Gregg correct? Explain.
Bettye Gregg offered to purchase a house from Head & Seeman, Inc. (seller). Though she represented in writing that she had between $15,000 and $20,000 in equity in another home that she would pay to the seller after she sold the other home, she knew that she did not have such equity. In reliance upon these intentionally fraudulent representations, the seller accepted Gregg’s offer and the parties entered into a land contract. After taking occupancy, Gregg failed to make any of the contract payments. The seller’s investigations then revealed the fraud. Head & Seeman then brought suit seeking rescission of the contract, return of the real estate, and restitution. Restitution was sought for the rental value for the five months of lost use of the property and the seller’s out-of-pocket expenses made in reliance upon the bargain. Gregg contends that under the election of remedies doctrine, the seller cannot both rescind the contract and recover damages for its breach. Is Gregg correct? Explain.
Relapsed and replaced indemnification may be compatible remedies that may not be subject to the election of the remedies principle. Here, the reinstatement of the lease value and the out-of-pocket expenses may work reliably with the cancellation of the agreement to restore Companies H and S to their confined position. There may not be any possibility for the company to obtain an inconsistent or double recovery. The election of the remedies does not apply.
Here, Person G may not be word perfect and the settlement may be altered. The referendum of the remedies principle supports a litigant from sustaining conflicting theories or forms of reassurance. Under the principle, a deceived party may select either to revoke or to assert the agreement and inquire for the damages, which may not be applied here.