Full opinion text
Table of Contents to Opinion and Order Page General Electric’s Motion Counts I through IX................................................... 55 A. Plaintiffs’ Tort Claims Against General Electric — Counts III through IX. 55 (1) Strict Liability.................................................... 56 (2) Negligence........................................................ 60 (3) Implied Warranty to Perform in a Safe and Workmanlike Manner ... 61 (4) Failure to Perform as an Expert................................... 61 (5) Negligent Misrepresentation/Willful Wanton Misconduct............. 62 (6) Wrongful Inducement............................................. 63 B. Plaintiffs’ Contract Claims Against General Electric.................... 64 Sargent and Lundy’s Motion— Counts X through XV.................................................. 66 Page A. Plaintiffs’ Tort Claims Against Sargent and Lundy..................... 66 B. Plaintiffs’ Contract Claims Against Sargent and Lundy................. 68 General Electric’s Motion— Counts XVI and XVII.................................................. 70 A. Fraud................................................................ 70 B. Racketeer Influenced and Corrupt Organizations Act................... 74 (1) Acts of Racketeering Activity...................................... 76 (2) Pattern of Racketeering Activity................................... 78 (3) Statute of Limitations............................................. 80 (4) Sufficiency of Pleading a Violation of § 1962(a)..................... 82 (5) Sufficiency of Pleading a Violation of § 1962(b)..................... 84 (6) Sufficiency of Pleading a Violation of § 1962(c)..................... 86 Conclusion............................................................... 88 OPINION AND ORDER SPIEGEL, District Judge: This matter came on for consideration of the motion to dismiss by defendant, Sargent and Lundy and its individual partners (doc. 80), motion for judgment on the pleadings by defendant General Electric Co. (doc. 81), plaintiff Cincinnati Gas and Electric Company’s (CG & E) memorandum in opposition to defendant Sargent and Lundy’s motion to dismiss (doc. 86), memorandum in opposition to defendant General Electric Company’s motion for judgment on the pleadings (doc. 87), reply in support of motion for judgment on the pleadings by defendant General Electric Company (doc. 95), and the reply in support of motion to dismiss by defendants Sargent and Lundy and its individual partners (doc. 95). Plaintiffs have also submitted a motion to file a surreply (doc. 229) to which General Electric has responded (doc. 239). The object of that motion is to address additional points brought out by defendants in their reply. In the interests of justice, we grant plaintiffs’ motion to file a surreply and will consider it herein. This litigation arises out of the construction of the William H. Zimmer Nuclear Power Station (hereinafter the “Zimmer Plant”) in Moscow, Ohio. In August 1969, defendant General Electric Company agreed, pursuant to a written contract to supply a nuclear reactor and related services including information concerning the magnitude and number of loads that would be generated by the nuclear steam supply system (hereinafter “NSSS”), to CG & E, Dayton Power and Light Company, and Columbus and Southern Ohio Electric Company (hereinafter “the plaintiffs”) for the proposed plant. The defendant, Sargent and Lundy, provided the architectural and engineering services for the plant and incorporated the information supplied by defendant General Electric into the design of the Zimmer Plant. Plaintiffs allege that the Zimmer containment is unable to withstand the violent forces generated by General Electric Company’s NSSS or contain its radioactive steam. As a result, plaintiffs have expended millions of dollars in an effort to determine how to repair the Zimmer Plant and operate it safely. Plaintiffs have sued General Electric and Sargent and Lundy on a variety of legal theories in both tort and contract. In plaintiff’s second amended complaint, they also allege certain violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq. The second amended complaint is directed toward General Electric alone. Article X of the contract between plaintiffs and defendant General Electric specifically limits liability “for all claims of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from this contract, or from the manufacture, sale, delivery, resale, installation or technical direction of installation, repair or use of any equipment covered by or furnished under the contract” to the contract price, which is $55 million. To summarize what follows, in our view, CG & E has attempted to circumvent the specific limitation on damages set forth in the contract by pleading numerous tort theories of recovery in Counts III through IX. Plaintiffs allege similar tort theories against Sargent and Lundy. We conclude that, since all of the parties entered into a written contract, the plaintiffs should be, for the most part, limited to such remedies that are available to them under contract law, and any tort remedies or tort claims arising out of those contracts should be dismissed. Therefore, as to Counts I through XV, this action will proceed upon plaintiffs’ contract claims alone (Counts I, II, X, and XI). We find that the second amended complaint (Counts XVI and XVII) is a different matter. Unlike the first amended complaint, which charges that General Electric should have disclosed important information that it should have known, akin to negligence, the second amended complaint alleges that General Electric actually knew certain facts and intentionally withheld and misrepresented those facts for the purpose of deceiving plaintiffs. These causes of action, if successfully litigated, would entitle plaintiffs to punitive damages, attorneys’ fees, and treble damages, far in excess of the contract damages, as “[i]n an action to recover damages for a tort which involves the ingredients of fraud, malice, or insult, a jury may go beyond the role of mere compensation to the party aggrieved, and award exemplary or punitive damages.” Roberts v. Mason, 10 Ohio St. 278 (1859). Therefore, this action will also proceed on plaintiffs’ fraud (Count XVI) and RICO (Count XVII) claims. GENERAL ELECTRIC’S MOTION Counts I through IX Counts one through nine of plaintiff’s amended complaint raise several theories of recovery against General Electric Company because of problems that developed from the design and manufacture of the NSSS: Breach of contract and warranty (Counts I and II), strict liability (Count III), negligent misrepresentation (Count IV), willful and wanton misconduct (Count V), wrongful inducement (Count VI), negligence (Count VII), breach of implied warranty of safe and workmanlike construction (Count VIII), and failure to perform services as an expert (Count IX). A. Plaintiffs’ Tort Claims Against General Electric — Counts III through IX General Electric argues that Counts III through IX of plaintiffs’ amended complaint should be dismissed because, although sounding in tort, such claims arise out of alleged breach of contractual duties and purely economic loss. Moreover, General Electric argues that privity of contract and the sophistication of the parties concerning nuclear matters does not necessitate this Court’s application of tort law in this action as a matter of public policy. Although both parties have eloquently argued their position, and the law of Ohio on the subject of products liability and economic loss is unsettled, we agree that Counts III through IX should be dismissed. Before we begin the difficult task of determining the types of losses for which Ohio law provides a remedy under the various tort theories of recovery and which claims presented in plaintiffs’ amended complaint arise out of contract, we must address the threshold issue of what type of loss have plaintiffs suffered? Since there is no allegation of personal injury in this case, we confine our discussion to situations which involve economic loss or damage to the defective product itself. One commentator, attempting to shed light upon the murky distinction between property damage and pure economic loss, has noted: [Wjhen the defect causes an accident ‘involving some violence or collision with external objects,’ the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966). In Spring Motors Distributors, Inc. v. Ford Motor Company, 98 N.J. 555, 489 A.2d 660 (1985), the Court concluded, consistent with the above explanation, that the gravaman of plaintiffs complaint, seeking recovery for repair, towing, and replacement parts for transmissions installed in commercial trucks, as well as for lost profits and a decrease in the value of the trucks, was for economic loss. A further distinction may be made between direct and indirect economic loss. Direct economic loss is the loss attributable to the decreased value of the product itself, measured by the difference between the actual value of the defective product and the value it would have had had it not been defective. Mead Corp. v. Allendale Mutual Insurance Co., 465 F.Supp. 355, 363 (N.D.Ohio 1979). On the other hand, indirect economic loss is the consequential damage an owner of a defective product sustains, Mead Corp., Id. at 363, which includes damages for a loss in the bargain, as well as the cost of repair and replacement. Spring Motors Distributors, 98 N.J. at 561, 489 A.2d at 663. Generally speaking, tort principles, such as negligence, are better suited for resolving claims including unanticipated physical injury, particularly those arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damage that the parties have, or could have, addressed in their agreement. Id. at 579, 489 A.2d at 672. The gravaman of plaintiffs’ complaint in this case is that the defects in the Zimmer containment caused them to sustain costs for repair or costs to redesign and reconstruct the Zimmer Plant. Plaintiffs have not alleged any present personal injury or property damage. Nor do plaintiffs allege that any component parts, supplied by defendants, have caused any structural damage to other portions of the Zimmer Plant. Therefore, we conclude that the cost of repair or cost to redesign and reconstruct the Zimmer Plant is purely economic loss, and is more appropriately dealt with by applying traditional contract principles. (1) Strict Liability Count III of the amended complaint seeks recovery on the basis of strict liability. Plaintiffs allege that the NSSS, including its components, its auxiliary systems and the nuclear containment, was dangerously defective and unsafe as designed, manufactured, sold and provided by General Electric and installed under General Electric’s direction. Plaintiffs also allege that the engineering analysis, technical advice, designs, information, and other services provided by General Electric were dangerously defective, inaccurate, incomplete, inadequate and unsafe. As a result, plaintiffs have spent millions of dollars to redesign and reconstruct the Zimmer Plant. Having concluded that the costs of redesigning and reconstructing the Zimmer Plant is economic loss, the second step in our analysis is to determine whether Ohio law allows recovery in strict liability under section 402A of the Restatement (Second) of Torts solely for economic loss sustained as a result of a defective product where the parties are in privity of contract. While no Ohio court has squarely addressed this issue, we conclude that section 402A is inapplicable in the action before us. The genesis for strict liability in tort was the decision of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963) which held: The manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being ... [27 Cal.Rptr. at 700] 377 P.2d at 900. Subsequent to the decision in Greenman, the doctrine of strict liability in tort was extended to actions arising out of property damages by the Court in Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), which held that “physical injury to property is so akin to personal injury that there is no reason for distinguishing them.” Clearly, Ohio law recognizes a tort theory based upon strict liability if property damage exists. Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co., 60 Ohio St. 560, 54 N.E. 528 (1899); Walczesky v. Hervitz, 26 Ohio St.2d 146, 269 N.E.2d 844 (1971). However, plaintiffs urge this Court to go two steps further and apply the doctrine in situations where property damage or personal injury is non-existent and the cause of action arises out of contract. On the present state of the law in Ohio as it relates to strict liability, we decline plaintiffs’ invitation. The Ohio Supreme Court first addressed the issue of whether economic loss could be recovered in tort and the tort, contract dichotomy in Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965). In recognizing a tort theory of recovery, for economic loss based upon breach of warranty where the parties were not in privity of contract, the Court in Inglis relied upon the court’s reasoning in Santor v. A & M Karagheusian, Inc., 82 N.J.Super. 319, 197 A.2d 589 (1964), rev’d, 44 N.J. 52, 207 A.2d 305 (1965): There is no doubt that the great mass of warranty cases imposing liability on the manufacturer regardless of lack of privity were concerned with personal injuries to the ultimate consumer. * * * [Citation of authorities]. But we see no just cause for recognition of the existence of an implied warranty of merchantibility and a right to recovery for breach thereof regardless of the lack of privity of the claimant in the one case and the exclusion of recovery in the other simply because loss of value of the article sold is the only damage resulting from the breach. The manufacturer is the father of the transaction. He makes the article and puts it in the channels of trade for sale to the public. No one questions the justice of a rule which holds him liable for defects arising out of the design or manufacture, or other causes while the product is under his control. After completion the article may pass through a series of hands, such as a distributor and' a wholesaler, before reaching the dealer at the point of ultimate intended sale. The dealer is simply a way station, a conduit on its trip from manufacturer to consumer. For these reasons in the recent past the courts of many jurisdictions, in an endeavor to achieve justice for the ultimate consumer, have imposed an implied warranty of reasonable fitness on the person responsible for the existence of the article and the origin of the marketing process. From the standpoint of principle we perceive no sound reason why the implication of reasonable fitness should be attached to the transaction and be actionable against the manufacturer where the defectively made product has caused personal injury and not actionable when inadequate manufacture has put a worthless article in the hands of an innocent purchaser who has paid the required price for it ... Inglis, 3 Ohio St.2d at 139-140, 209 N.E.2d 583 (citing Santor, 82 N.J.Super. at 322, 197 A.2d 589). In a subsequent decision involving personal injury and a lack of privity of contract between the product manufacturer and injured party, the Court indicated that there are virtually no distinctions between Ohio’s implied warranty tort theory and the Restatement version of strict liability in tort. Temple v. Wean United, 50 Ohio St.2d 317, 364 A.2d 267 (1977). Therefore, our analysis of the issues involved herein include the various authorities plaintiffs have cited to support their position which involve warranty, as well as strict liability theories. From the outset, we point out that the foregoing cases involved a consumer who was not in privity with the product manufacturer or supplier and therefore, proof of negligence and other theories of recovery would be difficult at best. Plaintiffs have provided us with much authority that Ohio does permit recovery for economic loss under various tort theories. However, we find that a common ingredient in those cases is either property damage or the lack of privity of contract between the injured party and the product manufacturer. In United States Fidelity and Guaranty Co. v. Trust & Concrete Equipment Co., 21 Ohio St.2d 244, 257 N.E.2d 380 (1970), the Court confirmed the importance of privity to product liability actions in Ohio. The insurer of a cement truck, not in privity of contract brought an action for economic loss against the defendant manufacturer.. Only after determining that there was no contractual relationship between the parties did the Supreme Court characterize plaintiffs action as one in tort “based upon the breach of an implied warranty____” Id. 257 N.E.2d at 384. Subsequently, the Court in Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 326 N.E.2d 267 (1975) permitted plaintiff to recover in tort for the cost of repairing a defective concrete driveway, but again, there was no express contract between the parties. Moreover, the Court in Iacono characterized the injury as property damage in finding physical deterioration in the product itself. Therefore, the prerequisites of section 402A were clearly met. The Court, in Mead v. Allendale Mutual Insurance Co., 465 F. Supp. 355, applied the foregoing authorities and concluded that economic loss is compensable under Ohio law based upon a theory of strict tort liability. However, Mead fails to provide us with any more guidance on the issue before us than the Ohio precedents. Although Mead purports to permit recovery in strict tort liability for purely economic loss, that action involved property damage as well, manifesting itself in corrosion of the stream turbine supplied by the defendant manufacturer, causing the joints in the coils to separate and deteriorate. Id. at 358. We also note that while Mead is a closer case, in that it permitted tort recovery for economic loss, even though there was privity of contract, the contract therein specifically limited defendants’ liability to repair or replacement of defective parts for a twelve-month period which had expired. Therefore, the remedy provided under the contract was grossly inadequate. We are persuaded that the Ohio courts would not permit recovery under a strict liability theory for purely economic loss, in a case such as this, where the parties are in privity of contract and there is no property damage or personal injury. We base our decision today on that very narrow premise. The authorities cited above heavily relied upon the reasoning of the New Jersey Court in Santor v. A & M Karagheusian, 82 N.J.Super. 319, 197 A.2d 589, which recognized an implied warranty of merchantability and right to recovery from a breach thereof, regardless of the absence of privity. Id. at 322, 197 A.2d 589. That same court has most recently pronounced that “The considerations that give rise to strict liability do not obtain between commercial parties with comparable power.” Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660. The Spring Motors court was concerned that if a commercial party could recover in strict liability for economic loss, it would obtain a greater economic benefit then it had contractually bargained for. We find that reasoning persuasive in this case, and we share those same concerns. We believe that Ohio law is in accord with the pronouncement of the New Jersey Court in Spring Motors. In that regard, we find the following statement by the Court in Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974) instructive. Concluding that plaintiff’s theory of implied warranty in tort must fail, the Court stated: [The] purchaser ... dealt at arm’s length with the seller ... and was free to negotiate the terms of the contract of sale. Implied warranty in tort is ordinarily applied where the purchaser is not in privity with the seller. Second, plaintiffs seek purely consequential damages in contrast to damages for injured persons or property. Third, the turbine generator is not an ordinary consumer product, but a specialized piece of equipment, familiar to both buyers and sellers. Id. 324 N.E.2d at 589. We are aware that Avenell has been criticized as resting “upon a tenuous and unarticulated, distinguishment of an earlier Ohio case law” and as pre-dating “the Ohio Supreme Courts’ clear statement on the recovery of economic loss in Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 326 N.E.2d 267 (1975).” Mead, 465 F.Supp. at 366 n. 17. However, as previously discussed, we do not believe that Iacono mandates a different result than the one reached by us today, as that case involved a total absence of privity and the presence of property damage. Moreover, the Avenell decision has not been specifically overruled by the Ohio courts, and therefore, there is no indication that it is not the law today with respect to tort recovery for economic loss when the parties are in privity of contract. Until the Supreme Court of Ohio directly states that the reasoning of the Avenell court is no longer valid or that the doctrine of strict liability should be applied to permit recovery for purely economic loss, even though the parties dealt at arm’s length and pursuant to contract, we are compelled to follow that court’s analysis. Moreover, the recent cases from other jurisdictions which plaintiffs have cited, do not convince us that Ohio would extend the doctrine of strict liability in order to permit recovery of economic loss where the parties are in privity of contract. Those cases either involve a total lack of privity or the presence of property damage or personal injury. We also have the benefit of the recent Supreme Court opinion in East River Steamship Corp. v. Transamerica Delaval, Inc., — U.S. -, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) which held that whether stated in negligence or strict liability, no products liability claim lies in admiralty when a commercial party alleges injury only to a product resulting in purely economic loss. Therefore, on the present state of the law, we conclude that plaintiffs’ claim founded upon section 402A must fail. Finally, plaintiffs argue that the design and construction of a nuclear power plant is an ultra-hazardous activity which gives rise to strict liability and the imposition of extracontractual duties upon product manufacturers. Therefore, they contend that liability should be imposed upon defendant. Plaintiffs are correct in pointing out that the business of nuclear energy has been held to be “an intrinsically ultrahazardous activity.” Carolina Environmental Study Group v. United States, 431 F.Supp. 203, 223 (W.D.N.C.1977), rev’d on other grounds, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). See also Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir.1981), rev’d on other grounds, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). We would have little difficulty in applying the doctrine in the event of a nuclear catastrophe. However, we decline to impose such liability where the mere prospect of such a catastrophe is alleged. More important, we reach this conclusion because the present harm plaintiffs seek to remedy is economic loss. Strict liability for the ultra-hazardous activities is specifically “limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.” Restatement (Second) of Torts § 519(2) (1977). We conclude that an example of the kind of harm justifying the imposition of strict liability is a nuclear explosion resulting in contamination of people and property, rather than economic loss sustained by the entity for which a nuclear power plant is built. The former type of harm is not alleged here and we decline to extend the doctrine any further. Accordingly, Count III of the complaint should be dismissed. (2) Negligence Count YII of the amended complaint seeks recovery on the basis of negligence. Plaintiffs allege that “as designor and ad-visor in connection with the provision of the BWR-5 NSSS for the Zimmer Plant, General Electric owed a duty of reasonable care to the owners in the performance of services for the owners.” We conclude that since there is a written contract between sophisticated parties and plaintiffs seek recovery for economic loss alone, plaintiffs are limited to such remedies that are available under contract law. In Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583, the Court affirmed dismissal of an automobile owner’s negligence claim which alleged that certain defects in the automobile, resulting from defendant’s negligence, proximately caused him a loss of $1,500, the difference between the purchase price and the alleged market value of the automobile. The Court noted that “[pjlaintiff does not allege that the negligence caused any damage to his person or to any property he owns other than that the auto is not worth what he paid for it.” Id. at 140, 209 N.E.2d 583. In concluding that purely economic loss is not compensable in negligence, the Court quoted Dean Prosser who has stated: ‘The one kind of damage not included is pecuniary loss. In other words, loss of the benefit of the bargain. If somebody sells an automobile to a dealer and the dealer sells it to the plaintiff, and it turns out that it is just no good as an automobile, so that having paid let us say $3,000 for the car, the plaintiff has received $1,500 loss, that kind of pecuniary loss is still, so far as I can see, limited to contracts between the parties, and the usual rule that for negligence there is no liability for mere pecuniary loss of a bargain, that is apparently carried over into this new tort, if that’s the name for it.’ Cleveland Bar Association Journal, 174-175, May 1965. Id. In addition to clear Ohio law which holds that economic loss cannot be recovered in a product liability suit on a negligence theory, see Mead Corp. v. Allendale Mutual Insurance Company, 465 F.Supp. 355, we are persuaded by Judge Urbom’s opinion in Nebraska Public Power District v. General Electric, No. CV75-L-142 (D.Neb. June 29, 1979), which addresses the precise issue before this Court. Specifically, should tort recovery for economic loss be permitted in a case involving sophisticated corporate entities, dealing in the specialized area of nuclear energy, who have entered into an extremely complex contract? In Nebraska Public Power District, the plaintiff sought recovery on the basis of strict liability and negligence for the designing, manufacturing, furnishing and installing of a defective bypass system in a nuclear facility. Plaintiff alleged it was forced to purchase power elsewhere, lose net revenues, and expend funds to replace the system, much like the plaintiffs here, who allege that they have expended millions of dollars for repair and replacement. The Court characterized the loss as “economic” loss. In holding that tort remedies were inapplicable, the Court stated: With manufacturers of mass-produced chattels or other similarly situated business parties, on the one hand, there is often no bargained-for contract between the parties to specify in detail their rights and duties, but rather there is an implicit understanding that the product which the lay consumer buys will be safe and operate as expected. To protect these expectations and promote the safety of the lay public and its property, the law imposes a duty upon the manufacturer which sounds in tort. The contracts in these instances are generally boiler-plates, and do not affect consumer expectations. Thus, circumstances generate a broader duty, and the aggrieved party may sue in tort or contract. In the case at bar, both parties to the contract were sophisticated businesses. The contract in elaborate detail sets out the rights and duties of the parties. The allegation of negligence stems from an alleged failure to comply with the specifics to the contract. The alleged negligence could not be shown without pleading, establishing and relying on the intricacies of the contract____ See Lincoln Carpet Mills v. Singer Company, 549 F.2d 80, 82-83 (C.A. 8th Cir.1977). NPPD contends that there exists a common law duty to perform contract duties with skill and in a workmanlike manner, the breach of which creates a cause of action in negligence. This argument was rejected by the court in Fuchs [v. Parsons Const. Co.], 166 Neb. [188] at 197, 199, 201, 88 N.W,2d [648] at 653-654, 655-656 [1958]. While the alleged breach of contract in this case may be considered a breach of this common law duty, that breach of duty is not, on these facts, independent of the duties imposed by the contract. The factual issues pertain, then, to NPPD’s cause of action for breach of contract. Similarly, we conclude that plaintiffs’ claims, based upon negligence, must be dismissed as the parties to the contract were sophisticated and the allegation of negligence stems from the breach of that contract. “When the promissee’s injury consists merely of the loss of his bargain, no tort claim arises because the duty of the promisor to fulfill the term of the bargain arises only from the contract.” Battista v. Lebanon Trotting Association, 538 F.2d 111, 117 (6th Cir.1976). (3) Implied Warranty to Perform in a Safe and Workmanlike Manner Like the plaintiff in Nebraska Power, the plaintiffs herein also allege, in Count VIII of the amended complaint, that defendant owed a legal duty to plaintiffs, independent of the contract, to perform its contractual duties in a safe and workmanlike manner. While Ohio law is clear that a builder has a duty to perform with workmanlike skill and use proper materials, Mitchem v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594 (1966), that duty may be found to have arisen out of the contract. Tibbs v. National Homes Construction Corp., 52 Ohio App.2d 281, 369 N.E.2d 1218 (1977); Lloyd v. William Fannin Builders, Inc., 40 Ohio App.2d 507, 320 N.E.2d 738 (1973). In First Bank of Akron v. Cann, 503 F.Supp. 419 (N.D.Ohio 1980), affd on other grounds, 669 F.2d 415 (6th Cir.1982), the Court held that plaintiffs’ allegation that the defendant “wrongfully failed to discover certain variances” was, in essence, a claim that defendant had failed to perform its services in a workmanlike manner and that “this implied warranty theory, improperly asserted as a tort claim, is co-extensive with [plaintiffs’] claim that [defendants] breached its express warranty that the project would be completed in a good workmanlike manner, and to consider it here [as a separate tort claim] would be superfluous.” Id. at 440. Our review of plaintiffs’ extensive amended complaint leads us to conclude that Count VIII reiterates plaintiffs’ breach of contract and warranty claims, as the essence of both counts is the allegation that defendant performed faulty construction and design and failed to discover and disclose certain hydrodynamic loads. “Under Ohio law, the existence of a contract action generally excludes the opportunity to present the same case as a tort claim.” Wolfe v. Continental Casualty Company, 647 F.2d 705, 710 (6th Cir.1981), cert. denied, 454 U.S. 1053, 102 S.Ct. 597, 70 L.Ed.2d 588 (1981). Without reaching the issue of whether the implied warranty of performance in a safe and workmanlike manner is limited to the builder-vendor situation, or whether General Electric may be so defined, we conclude that Count VIII, alleging that defendant failed to perform in a safe and workmanlike manner, should be dismissed for the foregoing reasons. (4) Failure to Perform as an Expert We also conclude that Count IX, which alleges that defendant failed to perform services as an expert has its genesis in negligence theory, and for the foregoing reasons, should be dismissed. Ohio law is clear that: A standard of conduct as to what constitutes due care may be established by legislative enactment or judicial decision. In the absence of either, it is established by a consideration of the facts and circumstances of the particular case. Richard v. Staehle, 70 Ohio App.2d 93 [434 N.E.2d 1379] (1980) (citing Eisenhuth v. Moneyhon, 161 Ohio St. 367 [119 N.E.2d 440] (1954). Our research of Ohio law has failed to uncover a separate duty of care for experts, imposed by the Ohio courts or legislature which creates a cause of action distinct from a claim in negligence. The only statute, tangentially relevant, is Ohio Rev. Code § 2305.11(A) which provides: An action for ... malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist ... shall be brought within one year after the cause thereof accrues____ In Hocking Conservancy District v. Dodson-Lindblom Associates, Inc., 62 Ohio St.2d 195, 404 N.E.2d 164 (1980), the Ohio Supreme Court declined to apply the statute to the profession of engineering and noted that although the term malpractice is sometimes used loosely to refer to the negligence of a member of any professional group, legally and technically, the term is still subject to the limited common law definition, which only included members of the medical and legal profession. Therefore, we conclude that the Ohio malpractice statute, Ohio Rev.Code § 2305.-11(A) is inapplicable in this case. If there is no specifically defined standard of care, the Ohio courts apply the general principles of the Restatement (Second) of Torts § 299A, which provides: ‘Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.’ This standard has been applied to professionals in general. Richard v. Staehle, 70 Ohio App.2d at 124, 434 N.E.2d 1379. We view the standard of care in this case, in the absence of special legislation or judicial decision, to be the care ordinarily used by members of the power generating profession and, in particular, the nuclear energy field. While the duty of care required may vary with the circumstances, one of which is the expertise possessed by an individual, the breach of that duty is merely an essential element of negligence law. Therefore, we conclude that the failure to perform as an expert does not constitute a theory of recovery independent of an underlying negligence claim. We have previously determined that plaintiffs’ negligence claim should be dismissed. Accordingly, Count IX of the amended complaint should be dismissed. (5) Negligent Misrepresentation/Willful and Wanton Misconduct Count IV of the amended complaint which alleges negligent misrepresentation, is subject to the same analysis we applied to plaintiffs’ negligence claims, as misconception of fact or law may be negligent conduct, Restatement (Second) of Torts § 304, and we conclude that is precisely what plaintiffs have alleged here. Accordingly, Count IV of the amended complaint is dismissed. However, we depart from our previous analysis, as it pertains to plaintiffs’ negligence claims, in considering Count V of plaintiffs’ amended complaint, which alleges that “as a direct, proximate and foreseeable result of General Electric’s willful and wanton misconduct, the owners were forced to incur costs of more than $360 million to redesign and reconstruct the Zimmer Plant____” Under Ohio law, an action based upon willful or wanton misconduct is distinct from an action for negligent conduct, as an essential element of such a claim is that the tortfeasor must act, or refrain from acting, with knowledge of a dangerous situation likely to cause injury to others. Kellerman v. J.J. Durig Co., 176 Ohio St. 320, 199 N.E.2d 562 (1964). The essence of Count V is that General Electric willfully and wantonly supplied faulty information and testing and failed to properly investigate and make certain disclosures. However, we conclude that plaintiffs have not stated a claim for willful and wanton misconduct, as a separate cause of action, apart from plaintiffs’ breach of contract claims. Punitive damages are not appropriate to and may not be awarded in an action for breach of contract and a pleader does not alter what is essentially an action for breach of contract by adding the words willfully, wantonly, and maliciously to a claim. Ketcham v. Miller, 104 Ohio St. 372, 136 N.E. 145 (1922). See also Tibbs v. National Homes Construction Corp., 52 Ohio App.2d 281, 369 N.E.2d 1218. Moreover, where an action rises out of a contract, and is also based upon tortious conduct, “actual damages attributable to the wrongful acts of the alleged tortfeasor must be shown in addition to those damages attributable solely to the breach of the contract.” Ali v. Jefferson Insurance Company, 5 Ohio App.3d 105, 108, 449 N.E.2d 495 (1982). In addition, there must be a breach of a legal duty imposed by law because of the relationship of the parties. For example, punitive damages in tort have been imposed upon insurance companies for their willful refusal to pay a valid claim pursuant to contract, based upon an implied-in-law duty of good faith and fair dealing. See Hoskins v. Aetna Life Insurance Company, 6 Ohio St.3d 272, 452 N.E.2d 1315 (1983); Kirk v. Safeco Ins. Co., 28 Ohio Misc. 44, 273 N.E.2d 919 (C.P.1970). Our parent circuit has noted that “the special conditions existent in a consumer-held insurance contract do not apply to an ordinary contract between businessmen” and has reaffirmed the rule that “no punitive damages are available for breach of contract.” Battista v. Lebanon Trotting Association, 538 F.2d at 118. As the Court noted in Wolfe v. Continental Casualty Company, 647 F.2d 705: The still valid rule of Ketcham v. Miller, 104 Ohio St. 372, 136 N.E. 145 (1922), forbids parties to convert contract actions into tort actions by attacking the motives of a breaching party, as the motive of a breaching party is irrelevant to a contract action ... [U]nder Ohio law the existence of a contract action generally excludes the opportunity to present the same case as a tort claim. Id. at 710. In Count II of the amended complaint, plaintiffs allege that “[b]ecause of GE’s breaches of contract and warranties, the owners were required to incur costs of over $360 million to redesign and reconstruct the Zimmer Plant.” Similarly, Count V of plaintiffs’ amended complaint alleges that “as a direct, proximate and foreseeable result of General Electric’s willful and wanton misconduct, the Owners were forced to incur costs of more than $360' million to redesign and reconstruct the Zimmer Plant.” We conclude that these damages are attributable solely to the breach of the contract, and therefore, tort remedies for willful and wanton misconduct are unavailable. Moreover, the policy for finding a special relationship is not present in this case where the parties to the contract were sophisticated. Furthermore, we note that Count XVI of plaintiffs’ second amended complaint alleges that “[bjecause of General Electric’s willful and wanton misconduct in fraudulently inducing the owners to rely on its fraudulent representations and omissions, plaintiffs ... are entitled to recover punitive damages together with attorney’s fees____” To a great extent, plaintiffs’ claim for willful and wanton misconduct is incorporated in Count XVI of plaintiffs’ second amended complaint, and accordingly, we dismiss Count V as a separate cause of action. (6) Wrongful Inducement Count VI of the amended complaint alleges that plaintiffs were wrongfully induced to enter into the contract in that: GE knew or should have known at the time the NSSS was first put on the market that severe hydrodynamic loads would occur in the Mark II containment during certain operating and accident conditions. GE marketed and sold to the owners its NSSS without regard for the hydrodynamic loads which it knew or should have known would be generated, and failed to disclose to the Owners as prospective purchasers that those loads should be expected____ Consequently, ... the Owners were induced to contract for and purchase GE’s boiling water NSSS and the Mark II containment concept. Again, defendants maintain that plaintiffs’ claim for wrongful inducement is really a claim founded upon negligence, as can be gleaned from the language of Count VI, regardless of its title. If Count VI is indeed a claim founded upon negligence, as defendant maintains, we must dismiss that Count because the economic loss plaintiffs seek is not compensable. Inglis v. American Motor Corp., 3 Ohio St.2d at 132, 209 N.E.2d 583. Alternatively, if plaintiffs claim for wrongful inducement states more than a mere claim for negligence, arising outside of the limitations imposed by contract law, we see no reason to sustain this claim apart from plaintiffs’ claim for fraudulent inducement delineated in Count XVI of the second amended complaint. For these reasons, we conclude that Count VI should be dismissed. B. Plaintiffs’ Contract Claims Against General Electric Plaintiffs assert two claims against General Electric for breach of contract and warranties. Count I seeks rescission and restitution. Count II is an action for damages. General Electric asserts that it is entitled to judgment on both counts because plaintiffs failed to plead notice to General Electric of a breach of the contract and plaintiffs have waived any right to rescission. General Electric argues that, under Ohio law, notice of a breach of contract is a condition precedent to a defendant’s liability, Hutchinson v. Renner, 28 Ohio App. 22, 162 N.E. 451 (1928) and that it is not sufficient that the seller was given notice of the facts constituting a nonconforming tender. He must also be informed that the buyer considers him to be in breach of the contract. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 152 (6th Cir.1983). On the other hand, plaintiffs argue that absent a specific requirement in a contract or statutory provision, the law does not require a plaintiff to allege that it has given notice of breach prior to the institution of a lawsuit. See Ohio Jur.3d Contracts, § 209 (1980). Plaintiffs point out that there is no clause requiring such notice in any of the contracts referred to in the complaint and that the notice requirement is statutorily imposed by Ohio Rev. Code § 1302.65(C) which deals exclusively with the sale of goods. Therefore, plaintiffs contend that they were not required to give notice of the breach. We agree that Ohio Rev.Code Chapter 1302 applies only to transactions for the sale of goods and that the contract involved herein was for services as well. ‘Goods’ means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities, and things in action. ‘Goods’ also includes the unborn young of animals and crops and other identified things attached to realty as described in Sec. 1302.02 of the Revised Code. Ohio Rev.Code § 1302.01(A)(8). In construing this section of the Ohio Code, this Court has the benefit of the Ohio decision of Allied Industrial Service Corp. v. Kasle Iron & Metals, Inc., 62 Ohio App.2d 144, 405 N.E.2d 307 (1977) which set forth the test for determining whether the breach of a hybrid service-sales contract is actionable under the Uniform Commercial Code. [T]he test for the inclusion in or the exclusion from sales provisions is whether the predominant factor and purpose of the contract is the rendition of service, with goods incidentally involved, ... Id. at 147, 405 N.E.2d 307. The defendant in Allied Industrial Service Corp., was hired to design an anti-pollution system and install the appropriate equipment into plaintiffs’ scrap iron processing plant. Concluding that the defendant was not a seller of “goods” as that term is defined in Ohio Rev.Code § 1302.-01(A)(8), the Court noted: Allied’s business was to design, install and service pollution control systems. Pursuant to an agreement with Kasle, Allied analyzed Kasle’s pollution problem, proposed what equipment should be used and how it should be incorporated in a system to control that problem, ordered the equipment and installed it. In effect, Allied sold Kasle a combination of goods and services for a total nonitemized price of approximately $60,000____ In applying the predominant factor test, we find that Allied was selling its services in the design and installation of a pollution control system, and that the goods ordered and installed, i.e., the particular filters, duct work, hood, etc., were incidental to the labor____ Id. Moreover, in Deaconess Home Ass’n v. Turner Construction Co., 14 Ohio App.3d 281, 286, 470 N.E.2d 950 (1984), the Court held that materials incorporated into a structure were not sold to plaintiff as “goods,” but were incorporated in an improvement to plaintiffs’ real estate in accordance with the construction contract. Therefore, the sales provisions of Ohio Rev.Code Chapter 1302 were inapplicable. In this case, plaintiffs’ own complaint reveals the importance of the services aspect of the contract, as plaintiffs stress the design aspects of General Electric’s undertaking and faulty disclosure or non-disclosure of loads that would be generated by the NSSS. But, in addition, a large part of the contract concerns the provision of the nuclear reactor itself. We cannot say whether the sale or service aspect predominates in this case. However, such a determination is not necessary to our analysis, as we conclude that the policy reasons which underlie the notice requirement would not be satisfied in this case. Those policies are as follows: First, express notice opens the way for settlement through negotiation between the parties. Second, proper notice minimizes the possibility of prejudice to the seller by giving him ‘ample opportunity to cure the defect, inspect the goods, investigate the claim or do whatever may be necessary to properly defend himself or minimize his damages while the facts are fresh in the minds of the parties.’ Standard Alliance Ind. v. Black Clawson Co., 587 F.2d 813, 826 (6th Cir.1978) (citations omitted). We conclude that given the complexity of the contract and services provided in this case, and the long standing relationship of the parties, the purposes of imposing the requirement of notice of a breach are not satisfied in this case. The Zimmer contract was in the process of negotiation for approximately four years, between 1970 and 1974. By 1974, the Zimmer Plant design was nearly complete and construction of the plant was well underway. Over a period of the next six years, General Electric made certain disclosures concerning hydrodynamic loading conditions and their effects upon the structural components of the plant. Work on the Zimmer Plant continued until January 21, 1984, when the owners decided to endeavor to convert the Zimmer Plant from a nuclear project to a coal-fire plant. Plaintiffs allege that “throughout the period from 1974 until the conversion decision, General Electric and S & L [Sargent & Lundy] improperly assured the owners that all of the problems could readily be resolved and were not due to any fault on their parts and the owners were forced to rely on those representations.” The facts reveal that both parties invested a great deal of time and effort in attempting to remedy the problems at the Zimmer Plant, that alternative suppliers in the technical nuclear power field were very limited, and that curing the defects would involve much more than simply replacing the defective product, because largely what rendered the product defective was the inaccuracy and unreliability of design information. We agree with plaintiffs that neither a simple tender nor acceptance as contemplated by the framers of Ohio Rev.Code Chapter 1302, was involved in this case and the notice requirement would have done little to foster settlement or cure efforts. Moreover, we fail to see how General Electric has been prejudiced by the delay. Therefore, we conclude that plaintiffs had no contractual or statutory duty to provide notice of breach to General Electric and we decline to dismiss Count I and II of the amended complaint on that basis. For similar reasons, we decline to dismiss Count I on the basis of General Electric’s additional argument that plaintiffs have waived any rights to rescission. Delay on the part of an injured party in exercising his right to rescind is not a waiver if it is caused by the pendency of repair efforts or assurances of repair. Twin Lakes Land & Water Co. v. Dohner, 242 F. 399 (6th Cir.1917). Moreover, “a lapse of time which would be unreasonable in one case may be entirely reasonable in another, and an important consideration in determining the question of unreasonable delay is whether there has been a change of position by, or prejudice to” the party who has breached the contract. 17A C.J.S. Contracts § 432, pp. 534-535. Ordinarily, the question of what is a reasonable time for rescission is a question of fact for the jury. See Ryan v. Glenn, 344 F.Supp. 198 (N.D.Miss.1972), aff'd, 489 F.2d 110 (5th Cir.1974); Zelinger v. Uvalde Rock Asphalt Co., 316 F.2d 47 (10th Cir.1963). In this case, the negotiation of the Zimmer contract and its implementation, including General Electric’s efforts to resolve any problems relating to the NSSS, took almost a decade and one-half. Those efforts apparently did not cease until January, 1984. Plaintiffs’ initial complaint, setting forth a claim for rescission, was filed July 10, 1984 {see doc. 1). We refuse to find, as a matter of law that a six-month delay, or even a three-year delay as General Electric contends, given the Nature of the transaction, was unreasonable. Accordingly, defendants’ motion as it relates to Count I and II is denied. SARGENT AND LUNDY’S MOTION Counts X through XV Counts ten through fifteen of plaintiffs’ amended complaint raise similar theories of recovery against Sargent and Lundy for failing to properly design the Zimmer containment: Rescission and restitution based on breach of contract (Count X), Damages for breach of contract (Count XI), Strict liability (Count XII), Negligent misrepresentation (Count (XIII), Professional malpractice (Count XIV) and Willful and wanton misconduct (Count XV). A. Plaintiffs’ Tort Claims Against Sargent and Lundy The same analysis that was applied to plaintiffs’ strict liability claim against General Electric (Count III) is applicable to plaintiffs’ strict liability claims against Sargent and Lundy (Count XII). Moreover, we conclude that Count XII should be dismissed for the additional reason that the contract between the parties merely provided that Sargent and Lundy would provide design services for the Zimmer Plant, as an architect and engineer. The doctrine of strict liability is primarily intended to impose special liability on those who market defective products to the general public in a mass-production context. See Restatement (Second) of Torts § 402A Comment C and F (1965). Even if the Sargent and Lundy “design” could somehow be construed as a product for purposes of section 402A, the design was specially tailored to the Zimmer Plant and was not mass-produced. At the outset, we note that Ohio law provides us with little guidance as to whether section 402A applies to a situation where the rendition of services predominates over the sale of a product. Rather, it reiterates the law applicable to traditional product sellers and manufacturers. However, we find it persuasive that the Ohio courts have held, with great certainty, that “there are virtually no distinctions between Ohio’s ‘implied warranty in tort’ theory and the Restatement version of strict liability in tort.” Temple v. Wean United, Inc., 50 Ohio St.2d at 322, 364 N.E.2d 267. See also Knitz v. Machine Co. 69 Ohio St.2d 460, 463, 432 N.E.2d 814 (1982). Under Ohio law, if the predominant factor and purpose of the contract is the rendition of services, with the sale of goods only incidentally involved, the breach of such hybrid-sales contract is not actionable under an implied warranty theory. Allied Industrial Service Corp. v. Kasle Iron and Metals, Inc., 62 Ohio App.2d 144, 405 N.E.2d 307. We conclude that the Ohio courts would not impose strict liability upon a provider of services, where the sale of a product is incidental, just as they would do when the breach of an implied warranty is alleged. Our holding is consistent with the present state of the law as it relates to builder-vendors or design engineers in Ohio, which declines to impose either strict liability or liability premised upon breach of implied warranties. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147. To permit recovery under implied warranty without requiring proof of negligence would be in the nature of strict liability; it would make the builder-vendor an insurer and would disregard ‘... the harsh truth that unfortunate problems arise on real estate and in real structures which no prudence can avoid and which defy every reasonable skill.’ Id. at 378 [433 N.E.2d 147] (quoting Mitchem v. Johnson, 7 Ohio St.2d 66 [218 N.E.2d 594] (1966)). See also City of Cincinnati v. Stanley Consultants, Inc., Slip Op. C-83-815 (Ham.Cty.Ct.App. November 7, 1984); McMillan v. Brune-Harpenau-Torbeck Builders, Inc., 8 Ohio St.3d 3 [455 N.E.2d 1276] (1983). Moreover, this cause of action arises out of a contract between sophisticated parties, and therefore, the justifications for imposing strict liability upon the defendants are not applicable in this case. We also conclude that plaintiffs’ contention that Sargent and Lundy should be held strictly liable for misrepresentations made while selling its services is without merit. Restatement (Second) of Torts § 552C (1977) provides: One who, in a sale, rental or exchange transaction with another, makes a misrepresentation of a material fact for the purpose of inducing the other to act or refrain from acting in reliance upon it, is subject to liability to the other for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation, even though it is not made fraudulently or negligently. Plaintiffs argue that section 552C is applicable in this case because the complaint alleges that plaintiffs were induced to enter into contracts with the defendants on the basis of Sargent and Lundy’s material misrepresentations, including assurances that the Zimmer containment was designed to satisfy all regulations of the Nuclear Regulatory Commission. We disagree. From the outset, we note that Ohio has not adopted the tort of innocent misrepresentation and the application of strict liability, encompassed by Restatement (Second) of Torts § 552(C). At most, one is responsible for a statement or representation made when a prudent person might know the truth of the facts upon which that statement or representation is founded. Mulvey v. King, 39 Ohio St. 491 (1883). We decline to extend Ohio law any further. Accordingly, Count XII of the amended complaint, which purports to impose strict liability upon Sargent and Lundy, is dismissed. Counts XIII (alleging negligent misrepresentation), XIV (alleging professional malpractice), and XV (alleging willful and wanton misconduct) suffer from the same weaknesses as Counts IV, V, and IX, which pertain to defendant General Electric. The Court finds that plaintiffs’ claims, alleging tort, are all variations on plaintiffs’ contract claims for the economic loss they have suffered, and therefore, should be dismissed. B. Plaintiffs’ Contract Claims Against Sargent and Lundy Count X of plaintiffs’ amended complaint seeks rescission and restitution against Sargent and Lundy based upon breach of contract. Count XI seeks money damages for breach of contract. Sargent and Lundy argues that Count X should be dismissed for two reasons: first, plaintiffs are unable to restore Sargent and Lundy to its original position and plaintiffs have reaped some benefit from the contract. Second, Sargent and Lundy asserts that plaintiffs are precluded from seeking the remedy of rescission because plaintiffs have recognized the validity of the contract. Count X of plaintiffs’ amended complaint alleges that Sargent and Lundy’s contractual breaches “are so material, substantial, and fundamental that its contract may be declared to be rescinded and all moneys paid to it should be returned to the owners as restitution.” However, Sargent and Lundy contends that the plaintiffs continue to utilize the instruments of the services it has provided pursuant to the contract because plaintiffs have announced their intention to convert the Zimmer Plant to a coal-fired plant. Under Ohio law, a party is not permitted to hold the fruits of his contract and at the same time repudiate it. K.W. Ignition Co. v. Unit Coil Co., 93 Ohio St. 128, 112 N.E. 199 (1915). Sargent and Lundy also argues that because the contract was largely service oriented, plaintiffs cannot restore the consideration received under that contract, which is a prerequisite to the remedy of rescission. An exception to the requirement of restoration has been carved out if what plaintiff has received is of no value to him. See Taft v. Wildman, 15 Ohio 123 (1840). However, at this stage of the proceedings, we are unable to determine, as a matter of law, what fruits of the contract plaintiffs have retained and their value. While it is true that plaintiffs plan to convert the Zimmer Plant to a coal-fired plant, we are unable to ascertain from the pleadings, how, or to what extent, the services provided by Sargent and Lundy will be utilized in that endeavor. Moreover, the Sixth Circuit has held that: While the general rule is that a party seeking to rescind must restore, or offer to restore, the consideration, or whatever he has received under the contract, the rule is not absolute, and shall not be strictly construed where restoration is impossible; but it is to be applied in accordance with equitable principles. Delta Investing Corporation v. Moore, 366 F.2d 516, 520 (6th Cir.1966). In the case before us, a return of the consideration, in the form of services already provided, is not possible. However, Ohio law does not require the impossible. It only requires one, who sues to recover what he had paid, to tender back the thing received by him so far as he is able. Boesch v. Guarantee Title & Trust Co., 18 O.L.Abs. 655 (1935). Once the value of those services are ascertained, and in the event the Court orders rescission, the parties could be placed in the status quo by plaintiffs’ tendering the pecuniary equivalent of the services provided. See 17 Am. Jur.2d Contract § 514. See also Adams Laboratories v. Jacobs Engineering Company, 486 F.Supp. 383 (N.D.Ill.1980); Higby v. Whittaker, 8 Ohio 198 (1837). Therefore, we conclude that the fact that plaintiffs may not be in a position to return exactly what they received under the contract does not bar them from seeking the remedy of rescission. Finally, we conclude that the fact that plaintiffs re