Head & Seemann, Inc. v. Gregg
Court of Appeals of Wisconsin
104 Wis. 2d 156 (1981)
Bettye Gregg (defendant) fraudulently claimed to have $15,000–$20,000 in home equity to buy a house from Head & Seemann, Inc. (H&S) (plaintiff), inducing H&S to enter the contract. After taking possession, Gregg stopped making payments. H&S sued for fraud, seeking rescission, ejectment, and damages for lost use and out-of-pocket expenses, and alternatively for breach of contract seeking rescission, foreclosure, and ejectment. The trial court granted partial summary judgment rescinding the contract for fraud and ordered ejectment, staying it briefly under a stipulation that H&S would drop its damages claim if Gregg left voluntarily within two weeks; she didn't leave, so the court entered a judgment of ejectment. Gregg then argued the doctrine of election of remedies barred H&S's damages claim because H&S had already elected ejectment, and the trial court agreed and dismissed the damages claim. H&S appealed.
Whether the formal doctrine of election of remedies bars a plaintiff who obtained ejectment on a fraud theory from separately recovering damages for lost use and out-of-pocket expenses, when awarding both would not result in a double recovery.