Section 18 Breach of Contract and Default in Performance

• Library: Remedies 2006

Generally, the complainant has the option to elect between rescission and breach of contract. Jones v. Peterson, 72 S.W.2d 76, 78 (Mo. 1934). But courts have limited this option in several ways. First, historically, courts have not awarded rescission when damages would adequately protect the injured party. SeeHaydon v. St. Louis & S. F. R. Co.,121 S.W. 15, 19 (Mo. 1909). And the plaintiff must not be in default of the contract. Reece v. Van Gilder, 281 S.W.2d 27, 32 (Mo. App. W.D. 1955). Moreover, the plaintiff must not have been the first to breach the contract. Landau v. St. Louis Pub. Serv. Co.,273 S.W.2d 255, 257 (Mo. banc 1954). Second, courts have limited the remedy to cases in which one party to the contract has yet to begin to perform their obligations (either by choice or otherwise). Jones, 72 S.W.2d...