Section 11 Election of Remedies

• Library: Remedies 2006

Rescission is, in many instances, inconsistent with other remedies. And although rescission may be pleaded in the alternative to other remedies sought (see Rule 55.06), at some point an election must be made between them. See Alexander v. Sagehorn, 600 S.W.2d 198 (Mo. App. S.D. 1980). For example, when making a claim for fraud, a plaintiff may plead for both damages and for rescission. But a claim for damages is, in essence, a claim to affirm the contract, and a claim for rescission is a rejection of the contract. See Harris v. Union Elec. Co., 766 S.W.2d 80 (Mo. banc 1989). The party is forced to make the election to protect the other party from a double remedy and to protect the congruity of the law in preventing a simultaneous affirmation and rejection of the same contract. Davis v. Cleary Bldg. Corp., 143 S.W.3d 659 (Mo. App. W.D. 2004). This is also true when considering a claim for damages or rescission for breach of contract.

Much care should be taken to protect when the election of remedy is made and by whom. The defendant cannot make the election for the plaintiff. But through an appropriate motion, the defendant can request the court to force the plaintiff to make its election. Or, a diligent defendant may convince the court that an election should be construed from conduct, thus preventing an explicit election in court. If the plaintiff refuses to make the election, the court will do so. See Baker v. Wade, 949 S.W.2d 199 (Mo. App. S.D. 1997). A plaintiff who refuses to make the election cannot complain when the trial court makes the election to avoid awarding an inconsistent or double recovery.

For the plaintiff, the ideal time for election of the remedy may be when the case is submitted. Trien v. Croasdale Constr. Co., 874 S.W.2d 478 (Mo. App. W.D. 1994). Any point after the close of the evidence creates confusion and the potential for inconsistent relief. See Buss v. Horine, 819 S.W.2d 762, 767 (Mo. App. S.D. 1991).

The election may be imputed earlier than submission through the conduct of the parties, before or during the litigation. In Timmons v. Bender, 601 S.W.2d 688 (Mo. App. W.D. 1980), the court found that the plaintiff had elected the remedy of rescission when accepting the return of the down payment by the defendant. The plaintiff’s later suit for damages in fraud was dismissed by summary judgment. Id. In Waugh v. Williams, 119 S.W.2d 223 (Mo. 1938), the plaintiffs were found to have made an election for...