(dissenting):
I dissent. The trial court committed error in several particulars. In the first place, Dr. Bell as an expert witness should have based his opinion upon facts stated in the form of a hypothetical question and not upon testimony which he had heard. There was considerable conflict in the testimony given. The witness may have based his opinion upon testimony which the jury did not believe.
However, while this was error, it need not necessarily be reversible error because it could have been cured by cross-examination.
The other errors regarding damages as set out below in my opinion require a new trial.
The Lambs filed their complaint in three counts which they denominated “Causes of Action,” to wit:
1. For rescission of the contract;
2. For damages for breach of contract; and
3. For damages for fraud.
By our Rules of Civil Procedure, inconsistent causes of action may be joined in one complaint.1 This joinder of causes of action does not mean that more than one recovery can be had on one set of facts or that recovery can be had under two inconsistent causes. The principle is important in the instant matter because the trial court submitted a special verdict to the jury, and in its judgment based on the answers to the interrogatories contained in the special verdict the trial court permitted a recovery under two of the theories presented in the complaint, to wit, for breach of contract and for fraud. It awarded punitive damages in the sum of $10,000, which would not be permitted under a breach of contract,2 and $20,000 attorney’s fees, which could not be given in the fraud count. Of course, a party to a contract who is defrauded by the other party may waive the contract provisions and sue for damages based on the tort. If he does so, he may not recover attorney’s fees pursuant to the contract.
In this case the appellants did not raise this point on appeal. However, even if there is no assignment of error on appeal, we may notice a matter of law which appears on the face of the record when necessary to do justice between the parties. See Universal Indemnity Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776, 779 (1934), where it is said:
There is no assignment of error directed to this point, and ordinarily under the well-settled rule it would not be considered by us; but the court may notice questions, not raised by the assignments of error, that appear on the face of the *611record, when such consideration is necessary to do justice. [Citation omitted.] Included in the total amount of the judgment entered against the garnishee herein was the award of exemplary damages against defendant Callahan in the sum of $1,000 . . . . The insurance company did not participate in this wrong, and was under no contract to indemnify against such. . . . The injured will not be allowed to. collect from a nonparticipating party for a wrong against the public. For the reasons above stated, the judgment should be modified by the deduction of the $1,000 included as exemplary damages.
Also, the case of Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390, 394 (1969), is in point. In the opinion the court said: “An error going to the foundation of the action will be noticed and reviewed on appeal whether or not it was assigned.”
The Lambs made no tender of rescission and apparently abandoned their so-called first cause of action. In the judgment which they caused the judge to sign, they included an award of attorney’s fees pursuant to the “Second Cause of Action” and an award of punitive damages under their “Third Cause of Action.” They were entitled to have the jury give a verdict on one or the other theory under proper instructions but not on both. Since the questions were answered in the special verdict, it would seem that the election might be made after verdict and the court enter a correct verdict. However, no such election was ever made in this case, and I do not think the error can now be cured.
The prevailing opinion indicates that Section 70A-2-721, Utah Code Annotated 1953, as amended in 1965, permits double recovery. Such is not the case. This section says that rescission and rejection or return of goods are not inconsistent with a claim of damages for fraud and that such a claim may include all remedies under the chapter. Here the Lambs neither rescinded nor rejected the goods, and the section has no application to this case. Besides, the remedies of the buyer are set out in Section 70A-2-711, and that section does not afford a double recovery.
The Lambs bought ten heifers and promised to pay therefor $25,000. They kept the heifers and were given a judgment in the amount of $33,000 without any deduction for their unfulfilled promise to pay for the cattle. Likewise, the jury answered that the Lambs sustained damages in the amount of $27,500 because of the failure of Fuyard I to be a breeder, without any deduction for the amount remaining unpaid on that animal.
If a defrauded person pays $10,000 for a bull and the animal were worth $10,000 if as represented but only worth $1,000 as it is, then the damage is $9,000, and the purchaser is made whole by getting a judgment for that amount. He has a $1,000 bull and is out only $1,000 ($10,000 minus $9,000) ; but if the purchaser buys the same bull on credit and gets judgment for $9,000 he has the bull and a judgment of $9,000 and is not out one cent. It thus is obvious that the unpaid amount of the purchase price must be deducted from the measure of damages assessed based on the difference between the value as represented and the value as is.
The heifers purchased from the Ban-garts were shipped to the Lambs in March of 1968. The court instructed the jury as follows:
If you find that defendants misrepresented the blood lines of the heifers to the plaintiffs, you will then determine the amount of plaintiffs’ recovery. The proper measure of damages is the difference between the market value of the heifers if they had been as represented and their value as unregistered heifers on December 1st, 1968.
The court then repeated the instruction word for word with only two intervening instructions.
The instruction is erroneous. The true measure of damages, if any, would be the value of the animals had they been as rep*612resented less their value as they were at the time of sale. If there were any special damages accruing because of the fraud or breach of warranty, they should be pleaded and proved. The instruction seems to follow the rule pertaining to land where the plaintiff may recover from a prior warrantor the value of the land at the time of eviction. This rule is not applicable to chattels. This rule is not affected in this case by Section 70A-2-723, U.C.A.1953, as amended in 1965, which provides that in an action based on “anticipatory repudiation” before the time of performance the value of a chattel .shall be determined as of the time when the aggrieved party learns of the repudiation. This is an action in fraud and is not based on anticipatory repudiation.
I would set aside the judgment and remand for a new trial and would award costs to the appellants.
CROCKETT, J., concurs in the views expressed in the dissenting opinion of EL-LETT, J.. Rule 18, U.R.C.P.
. There are some exceptions for punitive damages in contract actions such as in cases of breach of promise to marry and those against common carriers and public service corporations. See McCormick on Damages, Horn-book Series, Section 81; also 25 C.J.S., Damages § 120, p. 1126.