Grissom v. Moran
| Decision Date | 21 February 1973 |
| Docket Number | No. 771A123,771A123 |
| Citation | 292 N.E.2d 627,154 Ind.App. 419 |
| Parties | William M. GRISSOM, Amy Grissom, Appellants (Plaintiffs and Counter-Defendants below), v. Theodore F. MORAN, Nedra J. Moran, Appellees (Defendants and Counter-Claimants below). |
| Court | Indiana Appellate Court |
Joseph F. Quill, John G. McNutt, Indianapolis, for appellees.
ON PETITION FOR REHEARING
CONCLUSION--Grissoms' Petition for Rehearing is denied.
Grissoms' Petition for Rehearing is denied because the Grissoms have failed to show an abuse of discretion on the part of the trial court in returning the parties to the status quo.
In their Petition for Rehearing, petitioners-plaintiffs-appellants William and Amy Grissom (Grissoms) contend that the result reached by this court in our opinion at 290 N.E.2d 119 is inconsistent with the general rules announced in that opinion concerning the election of remedies available to a party who brings a fraud action.
In our opinion we concluded that defendants-appellees Theodore and Nedra Moran (Morans), having elected to rescind the contract for the sale of the Motel and seek a return to the status quo, were entitled to restitution of Ten Thousand Dollars ($10,000.00) which they had paid under the contract and Nine Hundred Forty-four Dollars and Twenty-four Cents ($944.24) expended by them in repairing the Motel. It was also our conclusion that the judgment of Six Thousand Nine Hundred Thirty-one Dollars ($6,931.00), being considerably less than the Ten Thousand Nine Hundred Forty-four Dollars and Twenty-four Cents ($10,944.24) due the Morans, was not so excessive as to constitute general damages. Differently stated, the sum awarded them was consistent with the election of the rescission remedy.
The Grissoms now offer for our consumption the contention that we and the trial judge failed to require the Morans to return the benefits they received under the contract. Specifically, they say the Morans received approximately Thirty-one Thousand Three Hundred Eighty-nine Dollars and Ninety-eight Cents ($31,389.98) from the operation of the Motel during the period of their possession. Deducting approximately Twenty Thousand Dollars ($20,000.00) for overhead expenses, Ten Thousand Dollars ($10,000.00) for the amount paid by the Morans under the contract, and an additional Nine Hundred Forty-four Dollars and Twenty-four Cents ($944.24) spent by the Morans to repair the Motel, the net result is that the Morans owe the Grissoms approximately One Hundred Forty Dollars ($140.00). Therefore, the Grissoms maintain that the award to the Morans of Six Thousand Nine Hundred Thirty-one Dollars ($6,931.00) obviously constituted general damages and is thus inconsistent with the theory of rescission and return to the status quo.
In our original opinion we stated that if a party brings an action for fraud he generally has an election between two inconsistent remedies. He may affirm the contract, retain any benefits received, and seek damages; or he may rescind the contract restore any benefits received under the contract, and be returned to the status quo. If he elects to rescind the contract, he may not recover general damages, although in certain limited situations special damages may be awarded. 1
Therefore, when a party elects to rescind the contract, he is only entitled to a return to the status quo. This usually requires a plaintiff to restore any benefit he received under the contract, including a return in specie of any property received and a reasonable rental value for the use of the property, plus damages for waste, if any. Likewise, the defendant must restore any money paid by the plaintiff under the contract plus interest, monetary reimbursement for reasonable repairs, expenditures and improvements made on the property by the plaintiff, and, where a business has been sold, a reasonable amount of compensation for the value of the plaintiff's labor and services rendered during the period of time which he operated and possessed the property. Widmer v. Leffelman (1949), 187 Or. 476, 212 P.2d 737.
A plaintiff, when seeking to rescind a contract, need only prove his right to rescind and that he is able to return in specie any property he has received...
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Mack v. American Fletcher Nat. Bank and Trust Co.
...by seeking damages thereon instead of electing to sue for rescission of a voidable transaction. See, e.g., Grissom v. Moran (1973), 154 Ind.App. 419, 292 N.E.2d 627 (on rehearing) (in suit for fraud, plaintiff must elect to sue for damages or to return all benefits and seek rescission). In ......
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In re Tomsic
... ... See, e.g., Grissom v. Moran, 154 Ind.App. 419, 290 N.E.2d 119, Reh'rg Denied 154 Ind.App. 432, 292 N.E.2d 627 (Ind.App.1972) (fraud action); Bissell v. Wert, 35 ... ...
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In re Rudd
... ... See, e.g., Grissom v. Moran, 154 Ind.App. 419, 290 N.E.2d 119, Reh'rg Denied 154 Ind.App. 432, 292 N.E.2d 627 (1972) (fraud action); Bissell v. Wert, 35 Ind. 54 ... ...
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