Head & Seemann v. Bettye J. Gregg

Bettye Gregg fraudulently induced Head & Seemann, Inc. to sell her a home in Brookfield. She occupied the home for five months but was subsequently ejected by a court order. In the action on the claim from which this appeal comes, Head & Seemann sought damages for the five months' lost use of the property. At issue was whether a defrauded party who obtains rescission and restitution of real estate may also recover rental value and out-of-pocket expenses for the period of lost possession. The trial court held that the election of remedies doctrine barred an additional action for rental value and out-of-pocket expenses. Because we do not believe that rescission and an action for damages are inconsistent remedies, we reverse. Defendant Bettye J. Gregg offered to buy a Brookfield home from plaintiff corporation. She represented, verbally and in writing, that she had $15,000 to $20,000 of equity in another home and would pay this amount to plaintiff after selling the other home. She knew, however, that she had no such equity. Relying on these intentionally fraudulent representations, plaintiff accepted defendant's offer to buy, and the parties entered into a land contract. After taking occupancy, defendant failed to make any of the contract payments. Plaintiff's investigation then revealed the fraud.