This case involves a dispute between the buyers and seller of a house. This is an appeal from a decree resolving that dispute wherein the chancellor granted appellee-buyers judgment in the amount of $2,446.49 and ordered appellant-seller to bear the expense of placing the home under a termite contract. Appellant raises two issues on appeal. He contends: (1) that the chancellor erred in granting relief not sought by appellees; and (2) that the chancellor erred in granting the amount and nature of damages awarded. We find no merit in the first issue raised, but we find sufficient merit in a portion of the second issue to remand on that point.
Appellees, Walter and Belinda Ray, purchased a home from appellant, Bill Jones, on May 27, 1993. Thereafter, they filed this suit in equity for the rescission of the purchase agreement. In their complaint, appellees alleged that the house had termite damage, that the sewer was defective and that a weight-bearing wall had settled due to deterioration in the underlying foundation. Appellees further alleged that appellant had concealed these material facts in order to induce their purchase of the house. After a hearing, the chancellor found no fraudulent inducement and concluded that the parties were operating under a mutual mistake of fact regarding the existence of termites and the resulting damage. The chancellor found, however, that this mutual mistake of fact was not substantial enough to warrant rescission of the contract. The court then awarded appellees $2,446.99 for the repair of the termite damage. The chancellor further ordered that the house be inspected for termites after the completion of the repairs and that “the residence should be placed under a contract at the expense of the [appellant].” This appeal followed.
As his first issue, appellant contends that the chancellor erred in awarding appellees damages when rescission was the only claim for relief sought in their complaint. Appellant contends that appellees elected the remedy of rescission and that he had no notice of a damage claim.1 We do not find this argument persuasive. The record reflects that appellees, and appellant himself, presented testimony concerning the amount it would cost to repair the termite damage. We have held that, although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) of the Arkansas Rules of Civil Procedure provides that issues not raised in the pleadings, but tried by express or implied consent of the parties, shall be treated in all respects as if they had been pled. In re Estate of Tucker, 46 Ark. App. 32, 881 S.W.2d 226 (1994). Under the circumstances, we conclude that the issue was tried by the implied consent of the parties. Moreover, appellant has failed to cite any authority for the proposition that the chancellor could not make an award of damages to compensate appellees for their loss upon finding that rescission of the contract was not justified under the facts presented at trial. The doctrine of election of remedies applies to remedies, not causes of action. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Simply put, it bars more than one recovery on inconsistent remedies. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). No double recovery has occurred here; therefore, it cannot be said that the doctrine of election of remedies has been offended. A court of equity may fashion any reasonable remedy justified by the proof. Smith v. Eastgate Properties, Inc., 312 Ark. 355, 849 S.W.2d 504 (1993). We find no merit in appellant’s challenge to the chancellor’s ruling.
Appellant also takes issue with the amount of damages awarded by the chancellor, arguing that it exceeded the amount necessary to repair the damage. The chancellor, however, considered the testimony of appellant’s witness and disregarded it for the reason that the witness’s estimate did not include the cost of repairing the floor. The court found that the repair of the floor was necessary and accepted the estimate of appellees’ witness who stated that the total damage could be repaired for $2,446.99. Chancery cases are reviewed de novo on appeal, and the appellate court will not disturb the chancellor’s findings unless they are clearly against the preponderance of the evidence, giving due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. McClard v. McClard, 50 Ark. App. 189, 901 S.W.2d 33 (1995). We cannot say that the chancellor’s finding is clearly erroneous.
Appellant further argues that the chancellor erred in ordering him to bear the expense of keeping the home under a termite contract for an indefinite period. In response, appellees maintain that appellant’s interpretation of the order is too broad. We agree that the chancellor’s order is not entirely clear on this point. Although we have the power to decide chancery cases de novo on the record before us we may, in appropriate cases, remand such cases for further action. Since the chancellor’s direction is unclear and the parties themselves dispute its meaning, we think it appropriate to remand for the chancellor to reconsider or clarify his order on this point alone.
Affirmed in part; remanded in part.
Jennings, C.J., and Cooper and Robbins, JJ., agree. Griffen and Mayfield, JJ., dissent.Not surprisingly, appellant does not argue in this appeal that the chancellor erred in failing to grant appellees’ request for rescission of the contract. Nor have appellees pursued a cross-appeal from the chancellor’s decision arguing that their claim for rescission should have been granted. In short, no party in this appeal takes issue with the chancellor’s denial of that relief. Consequently, any question of whether the chancellor should or should not have granted rescission is not an issue that is before us. We point this out only as a statement of the obvious, and that statement is not a product of flawed or result-oriented reasoning. More to the point, since the question of rescission is not before us, we are puzzled by the dissent’s conclusion that this case ought to be reversed and remanded for the purpose of granting that relief.