The opinion
Cook, Judge,
dissenting.
I would reverse the judgment of the trial court and find that Brandywine was not entitled to rescission and that it did not prove any breach of contract by American Home resulted in damages to it.
The trial court erred by granting an equitable remedy, rescission, where there was no showing of substantial nonperformance or a material breach. Not every breach of a contract or failure exactly to perform entitles the other party to rescind. To warrant rescission, the breach must be so substantial and so fundamental as to defeat the purpose of the contract.
Brandywine had the burden of proof on these issues. The court found substantial performance in that Brandywine had coverage for the ski season— the period of time when Brandywine had the greatest risk of loss by reason of injuries to skiers. With regard to proof of a material breach, the amount of
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damages is immaterial provided it is substantial. Brandywine suffered no damage. There was no proof that any contract variation had a monetary consequence. Brandywine received exactly what it wanted without any expense other than the agreed premium:
(1) Brandywine did not want to be charged fees and expenses in the event of a claim — it was not.
(2) Brandywine did not want to provide a letter of credit — it did not.
(3) Brandywine did not want to buy coverage for the summer from another carrier, pay additional premium for the remaining months of the year, or have a claim for which it was not covered after April 15 — it did not.
Without proof of substantial nonperformance or a material breach evidenced by substantial damages resulting from the breach, Brandywine was not entitled to rescission or return of the premium. The variations from what it claims it contracted for do not go to the root of the contract. The real undertaking was coverage for skiing accidents. That is what Brandywine ordered. If American Home wrote life insurance, that would be a thing different in substance from what Brandywine wanted. The provisions demanded by Brandywine which were not included in the deal were collateral to the contract.
Whether American Home put on proof in its counterclaim for quantum meruit is immaterial to Brandywine’s burden to show its entitlement to a return of the premium after having the benefit of coverage.
The reasoning of the trial court in determining that rescission is appropriate is inconsistent. The court found that there was a contract in that coverage was provided; even a claim was submitted and adjusted by the carrier. Then the court concluded to the contrary that there was no contract because there was “no meeting of the minds.”
For the foregoing reasons, I would find the fifth assignment of error well taken, reverse the judgment and enter final judgment for the third-party defendant.