concurring in part and dissenting in part.
I concur with the majority opinion except in regard to the third assignment of error. In that regard, plaintiff contends, “The trial court erred by awarding motel expenses to [defendant] because such damages constitute an impermissible ‘double recovery’ by [him].” She explains that after the restraining order was issued prohibiting defendant from residing at the partnership property, he moved to a motel that cost him $45 per night. The trial court awarded judgment against plaintiff in the amount of $33,039, which included an award of $3,375 for the motel expenses. The trial court also awarded plaintiff a judgment in the amount of $10,675 against defendant. The latter amount does not include $5,001, which allegedly represents defendant’s share of the expenses for the maintenance of the property after the parties moved out.
On appeal, plaintiff argues that the refusal of the trial court to include the $5,001 in the judgment that defendant owes plaintiff amounts to a “double recovery” when considered in combination with the award to defendant for the motel expenses. She says,
“The court’s award put [defendant] in a better position than if there had been no breach of partnership. If there had been no breach of partnership, [defendant] would have remained at the [partnership property], but he would have been obligated to pay his share of expenses. As a result of the breach of the partnership found by the trial court, [defendant] not only was excused from paying for the [partnership] property, but he also received the benefit of having [plaintiff] pay his expenses for living elsewhere. If this *172court does not remand the breach of the partnership issue for a new trial, it should reverse the trial court’s award of motel expenses.”1
In response to plaintiffs assignment of error, the majority reasons:
“In her third assignment of error, plaintiff challenges the award to defendant of his motel expenses during the time after plaintiff evicted him from the house and before he found a new house. Plaintiff argues that that award gives defendant a double recovery, because the court also excused him from any liability for partnership expenses after the entry of the restraining order. Plaintiff does not challenge that latter action, nor does she challenge the amount of the award. Because plaintiff presents only the legal question of whether the court’s award of damages constitutes a double recovery, we do not need to decide any factual issues and therefore review the issue as a question of law.
“For the motel expenses to be an improper double recovery, they must cover the same loss as the partnership expenses that defendant did not have to pay. Defendant incurred the motel expenses as a direct result of plaintiffs breach of the agreement. It was, thus, proper to award him damages for those expenses. Plaintiffs argument is that defendant was already compensated for his loss by being excused from paying the partnership expenses. However, because plaintiff excluded defendant from the partnership property, he was not able to use it for his residence and had to incur the cost of alternative housing. The evidence suggests that the expenses for the house may have totaled $600 to $700 a month, only half of which was defendant’s share, while the cost of the motel was $45 a day. Simply being excused from paying his portion of the expenses of the house, thus, was inadequate to cover all of defendant’s damages arising from plaintiffs breach. At least some of the award of motel expenses was not a double recovery. Because plaintiff seeks only to overturn the award in its *173entirety, not to reduce its amount, we do not need to determine whether any part of it in fact represents a double recovery.” (Footnote omitted; emphasis in original.)
As plaintiff points out, our review as to the resolution of the dissolution of partnership issues reflected in the judgments is de novo. Mikkelson v. Conser, 84 Or App 112, 733 P2d 106, rev den 303 Or 483 (1987). In the abstract, a successful assignment of error on appeal as to a particular aspect of a partnership dissolution could influence the ultimate award because the ultimate award is dependent on the sums and offsets that lead to its calculation. In this case, a part of the ultimate award to plaintiff includes the rejection by the trial court of the claim by plaintiff for $5,001 in partnership expenses. As a result, when plaintiffs judgment is offset against defendant’s judgment, which includes the motel expenses, plaintiffs “double recovery” argument under her third assignment of error takes form. It is in essence an argument that to award motel expenses to defendant while refusing to reimburse plaintiff for her expenditures on behalf of the partnership that benefitted defendant’s interest in the partnership property results in a disproportionate and unfair recovery by defendant. Under those circumstances, plaintiffs assignment of error and her argument under it necessarily encompass the partnership expenses issue in light of the trial court’s ultimate rulings.
Additionally, when our standard of review is equitable in nature as it is here, we are to conduct a review of the record and grant relief in a manner that is just and fair to both parties under all the circumstances. ORS 19.415(3); Haguewood and Haguewood, 292 Or 197, 202, 638 P2d 1135 (1981). When equitable relief is the gist of an assignment of error as here, the application of appellate rules of procedure should be more relaxed. Plaintiff does not receive “her day in our court” under the majority’s “wooden” procedural approach even though the issues of defendant’s breach of the partnership agreement and the relative equities of the parties’ positions were considered and decided by the trial court. Although plaintiffs assignment of error may be inartfully expressed, it suffices to meet the requirements of ORAP 5.45. It is clearly a request that we review “anew” whether the *174award of the motel expenses to defendant is equitable under the circumstances.
I turn to the merits of plaintiffs third assignment of error. In general, a party is not entitled to benefit from another’s breach when he is also in breach himself. He who seeks equitable relief must also have acted equitably or performed his part of the bargain. Hermann v. Churchill, 235 Or 327, 332, 385 P2d 190 (1963). Thus, the proper measure of relief to which defendant is entitled is the amount of money that will restore him to the position in which he would have been but for the breaches of the partnership agreement by both parties.
In this case, defendant breached the partnership agreement before May 1995 by using the partnership property for business purposes. His conduct impaired the ability of plaintiff to use the partnership property for residential purposes, and the trial court ruled that defendant’s use constituted a material breach of the parties’ partnership agreement. The trial court also ruled that plaintiff breached the partnership agreement in May 1995 by wrongfully ousting defendant from occupancy of the property. The motel expenses, which are a part of the subject of plaintiffs assignment of error, were incurred after defendant was evicted from the premises and until August of 1995. The maintenance expenses for the partnership property were incurred from June 1995 through February 1996, when neither party occupied the partnership property. They include expenditures by plaintiff for mortgage obligations, utilities, insurance, repairs, maintenance, taxes, and the cost of photographs and an appraisal for the purpose of offering the property for sale.2
The trial court based its ruling to deny plaintiff credit for the monies she had expended on behalf of defendant on the premise that the effect of plaintiffs breach was to relieve defendant of the obligation to pay his share of those *175expenses. That premise is erroneous. The expenses were paid by plaintiff to preserve the partnership property or to sell it after both parties had breached the partnership agreement. Consequently, equity requires that both share in the expenses equally. Defendant is not entitled to an award that gives him a benefit from his failure to perform a contractual obligation that coexisted with plaintiffs obligations under the partnership agreement. Campbell v. Karb, 80 Or App 220, 224, 721 P2d 881 (1986). See also Restatement (Second) of Contracts, § 335 (1979).3
For the above reasons, the majority errs. I would include the $3,375 in motel expenses in the amounts owed by plaintiff to defendant as part of the partnership dissolution calculation, but I would offset the $3,375 on plaintiffs side of the ledger as she requests. Some portions of the $5,001 expenditures were challenged by defendant at trial. He contended that if he had been allowed to live in the house, some of the maintenance and repair expenses would not have been incurred. Defendant’s share of plaintiffs expenditures for those categories as claimed by her is $1,060. Because the uncontested, fixed costs of preserving the partnership property exceeded $3,375, plaintiffs requested relief is equitable.
In context, plaintiffs requested relief on appeal runs the gamut of asking us to “reverse” some of the trial court’s legal rulings and its findings, to remand the case for a calculation of defendant’s damages and to “modify” the judgment. However, at least as to the third assignment of error, it is clear that plaintiff is requesting “de novo” review of the evidence and the trial court’s judgment for the motel expenses.
The trial court ordered the partnership property sold. It said, “I am giving [plaintiff] the responsibility of listing and selling the property, as I have very little faith [that defendant] would ever get it done. Implicit in this is a ruling that the material breaches by both parties take away any entitlement of either to invoke the buy-out provisions of the [partnership agreement].”
Restatement (Second) of Contracts § 335 (1979) provides:
“If the defendant’s breach of contract saves expense to the plaintiff by discharging his duty of rendering a performance in return or excusing him from the performance of a condition precedent, the amount of this saving is deducted from the damages that otherwise be recoverable.”