(concurring and dissenting):
I concur in Justice Howe’s opinion, except for Part III, damages.
When Deere wrongfully repossessed the 1977 combine, the buyer was not in default. Consequently, the Uniform Commercial Code provisions regulating the rights of the parties upon the debtor’s default are inapplicable.1 The sole statutory provision applicable to the rights of a debtor who is not in default is § 70A-9-507(l), which is either inapplicable to the facts of this case or cumulative of the common-law remedy elected by the debtor.
In this case, the buyer (debtor) elected an action for wrongful repossession of goods sold under contract, an intentional tort which, if proven, would entitle the buyer to a tort measure of damages, including punitive damages. First Security Bank of Utah v. JBJ Feedyards, Inc., Utah, 653 P.2d 591 (1982); 1 C.J.S. Actions § 47 (1936); 25 C.J.S. Damages § 120 (1966); 22 Am.Jur.2d Damages § 245 (1964). However, the compensatory relief awarded by the trial court *1132and approved by Justice Howe’s opinion in this case was comparable to the relief that would be given under the legal remedy of recision for a material breach of contract: Deere keeps the combine and the buyer recovers all of the amounts he has paid.
The trial court’s broad discretion in fixing damages cannot justify the compensatory damages awarded in this case for three reasons: (1) A plaintiff cannot elect one theory or remedy in his complaint and proof at trial and then obtain relief only appropriate to another and inconsistent theory or remedy. 28 C.J.S. Election of Remedies § 3 (1941). Cf. Cook v. Covey-Ballard Motor Co., 69 Utah 161, 169-70, 253 P. 196, 199 (1927). (2) Even the remedy of recision requires that the plaintiff’s recovery be reduced for benefits received, in this case the reasonable value of the use of the combine during the time he possessed it. Erisman v. Overman, 11 Utah 2d 258, 262, 358 P.2d 85, 87 (1961). (3) Punitive damages are only recoverable for a “tortious invasion of the chattel holder’s interest,” Annot., 35 A.L. R.3d 1016, 1025 (1971); authorities cited supra, and therefore cannot be an element of damages accompanying the contract remedy of recision for a mere breach of contract. Reese v. Cradit, 12 Ariz.App. 233, 236, 469 P.2d 467, 470 (1970).
I would therefore vacate the award of compensatory damages and remand with directions to redetermine plaintiff’s damages on the existing record on the basis of the loss the plaintiff suffered from the wrongful action of Deere, with appropriate adjustment for the disposition of the collateral since it was repossessed. In the alternative, the award of punitive damages should be vacated and plaintiff’s recovery as compensatory damages of the amounts he had paid should be reduced by the value of his possession of the combine.
HALL, C.J., concurs in the concurring and dissenting opinion of OAKS, J.. The secured property being located and the key actions having been taken in Utah, the law of this state governs the rights of the parties on default and for wrongful repossession. U.C.A., 1953, § 70A-1-105(1). Section 70A-9-103(3), which specifies the applicability of the law of the debtor’s place of business, only applies to questions of the perfection of the security interest. § 70A-1-105(2).