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. SeeAlexander 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. SeeHarris 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...