The appellant has petitioned for a rehearing. It contends that the court erred in remanding the case for a new trial. Appellant urges that the respondents had an election of remedies and elected to sue for damages; that, therefore, they cannot now, having lost in that action, sue on the theory of rescission. The vice in appellant's argument lies in its assumption that the respondents had the right of election. They did not. They were, by their contract, as our opinion holds, limited to an action on the theory of rescission, so there was no room for an election. The opinion as written is not predicated upon the theory that the trial court erred in holding that there had been no rescission. Nor does it hold that a rescission was in fact established. It holds merely that the case was tried erroneously on the damage theory, and that on a retrial the respondents may be able to establish a case on the proper theory, and the case is therefore remanded for a new trial.
The petition for rehearing is denied.
*Page 208BIRDZELL, CHRISTIANSON, BURKE, and BURR, JJ., concur.