The election of remedies doctrine precludes a party from pursuing two or more inconsistent remedies for the same injury or cause of action. Lempa v. Finkel , 278 Ill. App. 3d 417, 423, 215 Ill.Dec. 408, 663 N.E.2d 158 (1996) ; Altom v. Hawes , 63 Ill. App. 3d 659, 661, 20 Ill.Dec. 330, 380 N.E.2d 7 (1978). "For one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other."

The election of remedies doctrine precludes a party from pursuing two or more inconsistent remedies for the same injury or cause of action. Lempa v. Finkel, 278 Ill. App. 3d 417, 423 (1996); Altom v. Hawes, 63 Ill. App. 3d 659, 661 (1978). "For one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other."

However, the preclusion from resort to other remedies occurs only if the remedies are inconsistent. ( Altom v. Hawes (1978), 63 Ill. App.3d 659, 661, 380 N.E.2d 7.) For one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other.

The election of remedies doctrine precludes a party from pursuing two or more inconsistent remedies for the same injury or cause of action. Lempa v. Finkel, 278 Ill. App. 3d 417, 423 (1996); Altom v. Hawes, 63 Ill. App. 3d 659, 661 (1978). "For one proceeding to be a bar to another, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other."

iverdale Distillery Co., 15 Ill. App. 57 (1884) ("a suit brought by the vendor against the vendee for the price of the goods with knowledge of the fraud by which the sale was effected, affirms the sale, and he can not thereafter rescind the same")), there is more recent authority indicating a shift towards the rule of the Second Restatement (see, e.g., Gironda v. Paulson, 238 N.E.2d 1081, [ 238 Ill. App.3d 1081] 1084, 605 N.E.2d 1089, 1091 (1992) ("The election of remedies doctrine applies in cases of alternative pleading only where the opposing party has substantially altered his position in reliance on the plaintiff's choice"); Finke v. Woodard, 122 Ill. App.3d 911, 919, 462 N.E.2d 13, 19 (where defendant did not substantially change his position in reliance on plaintiff's initial claim for damages, there was no election of remedies and plaintiff was permitted to later add an equitable claim for rescission and it was proper to submit both the legal and equitable claims to the jury); Altom v. Hawes, 63 Ill. App.3d 659, 662-63, 380 N.E.2d 7, 9 (1978) (citing the Restatement and Corbin)). The comment to the Restatement explains that a "change of position is `material' within the meaning of * * * Section [378] if it is such that in all the circumstances a shift in remedies would be unjust."

The courts do not attempt to determine whether the separate remedies are inconsistent by nature, but whether the party should be estopped to bring the second action. ( Altom v. Hawes (1978), 63 Ill. App.3d 659, 662.) Accordingly, the doctrine has been increasingly confined to those cases where (1) double compensation is threatened, (2) defendant has been misled by plaintiff's conduct and has changed his position in reliance upon it, or (3) the doctrine of res judicata can be applied. ( Kenny Construction Co. v. Hinsdale Sanitary District (1982), 111 Ill. App.3d 690, 698-99; Faber, Coe Gregg, Inc. v. First National Bank (1969), 107 Ill. App.2d 204, 211.

The instant case, wherein Bral and Devlieger have already repossessed the farm and Bral now seeks an additional remedy, is precisely the type of case in which double recovery is actually threatened. Bral's reliance upon Altom v. Hawes, 63 Ill.App.3d 659, 20 Ill.Dec. 330, 380 N.E.2d 7 (Fifth Dist. 1978), is therefore misplaced. In Altom, resort to the "inconsistent" remedy alleged to have been resorted to resulted in an unsatisfied judgment and thus subsequent resort to an alternate remedy presented no risk of double recovery.

The district court would now entirely ignore Illinois law as to election of remedies but would seem to apply the Illinois law of ab initio rescission plus complete past restitution. It appears to be clear under general law and under Illinois law as well that a person suing for fraud or misrepresentation may seek damages for the tort of deceit at law or may waive the tort and make an election to seek restitution in quasi contract or equitable restitution. W. Prosser, Handbook of the Law of Torts §§ 94, 105 (4th ed. 1971); E. Thurston, Cases on Restitution 44-109; Altom v. Hawes, 63 Ill.App.3d 659, 20 Ill.Dec. 330, 380 N.E.2d 7 (1978). In Essington v. Parish, 164 F.2d 725, 730 (7th Cir. 1947), we noted:

Since the statutory remedy under section 3-602 and the common law action for wilful and wanton misconduct are not inconsistent, the election-of-remedies doctrine is inapplicable to this case. ( Fleming v. Dillon (1938), 370 Ill. 325, 331-32; Altom v. Hawes (1978), 63 Ill. App.3d 659, 661-62; D. Dobbs, Remedies 13-23 (1982); Kiely, Damages, Equity and Restitution — Illinois Remedial Options (1975), 24 DePaul L. Rev. 274, 316-19.) In Jackson v. Industrial Board (1917), 280 Ill. 526, this court stated:

`"The formal doctrine of election of remedies by judicial decision has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases `where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff's conduct or (3) res adjudicata can be applied.' Bogert, Trusts and Trustees, 1935 Vol. IV, sec. 946."' (Accord, Altom v. Hawes (1978), 63 Ill. App.3d 659, 663; Schwartz v. City of Chicago (1974), 21 Ill. App.3d 84, 94.) There is no threat of double compensation on this record; District 141 has not been misled by the claimant's acts; and there has been no decision rendered in the California proceeding which would invoke the doctrine of res judicata. Thus, the claimant has not elected a remedy to the extent required by Illinois law so as to prevent the Commission from exercising jurisdiction over her claim.