dissenting.
For quite a long time, Indiana has held that a buyer of property who discovers a false representation must elect a remedy against the seller: rescission, damages for fraud, or damages for breach of warranty. Reed v. Tioga Manuf. Co. (1879), 66 Ind. 21; Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 41 N.E.2d 947.
This is not a rule which can be overcome just by drafting a complaint that seeks relief in the alternative, as the majority holds. The purchaser must decide whether he wants to keep the benefit of his bargain *310by asking for damages or to set aside the bargain through rescission. He certainly is not entitled to do both.
A fair reading of the purchaser's complaint in this case is that he wanted to reject the bargain, give back the land, and get his money back. I am inclined to agree with Judge O'Connor that the purchaser's tender of a deed back to the seller is adequate to effect a proper rescission; it gives the seller back the land in substantially the same condition. Even if one were to regard adding fill to one acre in a forty-acre tract of river bottom land adjacent to U.S. 41 as a substantial alteration, it is apparent that the alteration was made so that the acre could be used for commercial purposes relating to the highway. That may be impossible now, but the law traditionally excuses such alterations when they are related to the seller's omissions. 17A Am. Jur.2d Contracts § 597 (1991).
If, as the Court holds, however, purchaser is not entitled to rescind, then he has rendered impossible the remedy he seeks and judgment should be for the seller.
DeBRULER, J., joins in this dissent.