Ryals v. Livingston

(After stating the foregoing facts.)

We think the court erred in not sustaining the general demurrer and dismissing the petition. The plaintiff is suing for a breach' of contract, and is seeking damages therefor. He did not accept the alleged breach by the defendant as ground for a rescission. In that case he would have been entitled to a restoration of the status, and if the defendant had refused on demand to deliver the plaintiff’s automobile back to him, he could have brought a suit for its value. The plaintiff elected a different remedy, however, and in the action as brought the petition…