Election Between Contract Damages and Fraud Damages
In Hendon v. Glover, the court held that plaintiffs were required to elect between breach of contract damages and fraud damages:
"It is well settled that a party aggrieved by a fraudulent transaction has alternate remedies and may either rescind, or affirm the transaction and recover his damages.
But he cannot do both; he cannot retain all the benefits of the transaction and escape all of the obligations." Hendon v. Glover, 761 S.W.2d 120, 122 (Tex. App.--Beaumont 1988, writ denied) (quoting from Talley v. Nalley, 277 S.W.2d 739, 740 (Tex. Civ. App.--Waco 1955, writ ref'd n.r.e.)).
The court reasoned that to allow recovery for both would constitute a double recovery, stating: "While the language of those cases does not exactly cover our situation, it does proclaim that an aggrieved party has but one remedy, if that remedy makes him whole." Id.
In Swink v. Alesi, 999 S.W.2d 107, 111 (Tex. App.--Houston 14th Dist. 1999, no pet.), the buyer of a business sued for breach of contract and for fraud based on misrepresentations.
The court held that absent evidence of distinct damages suffered from the fraudulent misrepresentation, the buyer was required to elect between the damages awarded for fraud and those awarded for breach of contract. Id.
Based on these cases, an election will normally be required between contract damages and fraud damages to prevent a double recovery. Foley v. Parlier, 68 S.W.3d 870, 883 (Tex. App.--Fort Worth 2002, no pet.).