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JUSTICE GORDON delivered the opinion of the Court:

BACKGROUND FACTS

This litigation is a consolidated action which arose out ofa transaction for the sale of a business which sold replacementparts for printing presses. This action consists of two suits,the first one brought in the chancery division by plaintiffRobert Fleck against Quality Components, Wally Stoneham andWilliam Guckien for payment of money owed to him under a non-competition agreement between him and Quality and guaranteed byStoneham and Guckien, and by plaintiff Kel-Keef for payment on apromissory note between it and Quality and guaranteed by Stonehamand Guckien for the assets of the business which Kel-Keef sold toQuality pursuant to a purchase agreement. The second lawsuit wasbrought in the law division against Fleck and Kel-Keef by Qualityfor breach of those same agreements.

At the trial William Stoneham testified for QualityComponents Corporation ("QCC II") that he began working for acompany known as DEV Industries ("DEV") in 1984 as a salesman. DEV was in the business of selling replacement parts for printingpresses. DEV did not manufacture the parts, but kept blueprintsnumbering in the hundreds or thousands for all of the parts whichit sold which it would then job out to machine shops to fabricatethe parts which its customers requested. While working at DEVStoneham became aware of a lawsuit (the "Rockwell I" litigation)that was brought in federal court against DEV by RockwellGraphics ("Rockwell") which claimed the ownership to certain ofthese blueprints. In 1988 defendant Robert Fleck ("Fleck")purchased the replacement parts division of DEV (for whichStoneham worked) and named the new company Quality ComponentsCorporation ("QCC I"). Fleck had previously been president ofDEV and was one of its four shareholders. Stoneham became anemployee of the new company (QCC I) and helped move the drawersof blueprints from DEV to QCC I.

In 1989 Stoneham and William Guckien ("Guckien") begannegotiations with Fleck to purchase the assets of QCC I. Duringthe negotiations, Stoneham had several discussions with Fleckregarding the Rockwell I litigation. Fleck told Stoneham thatnone of the blueprints which QCC I possessed were involved in theRockwell lawsuit. Stoneham and Guckien set up a corporation(later identified as Components Holdings Inc. ("CHI")) topurchase the assets of QCC I. After it acquired the assets ofQCC I, CHI adopted the name of the vendor Quality ComponentsCorporation (QCC II). After the sale of its assets to QCC II,QCC I changed its name to Kel-Keef Enterprises, Inc. ("Kel-Keef").

In 1991 QCC II was joined as a defendant in a lawsuitbrought in Cook County circuit court (No. 91 CH 01011) byRockwell (the "Rockwell II" litigation), which also named DEV andFleck. The lawsuit was related to the Rockwell I litigationagainst DEV, alleging that QCC II had blueprints which belongedto Rockwell. There was no list attached to Rockwell's suitpapers identifying the blueprints which the lawsuit related to,but Fleck sent Stoneham a list of the blueprints which were atissue in the first lawsuit against DEV from which Stonehamdetermined that 53 of the blueprints which QCC II had acquiredfrom QCC I were in fact claimed by Rockwell in its lawsuit. QCCII thereupon settled the Rockwell II litigation against it in1993 pursuant to which QCC II gave up to Rockwell the 53blueprints which Rockwell claimed from it in that lawsuit.Stoneham further averred that on the advice of their attorney,Stoneham and Guckien decided to stop making payments to Fleckpursuant to the non-competition agreement and to Kel-Keefpursuant to the purchase agreement.

Deborah Ruff testified in rebuttal for QCC II that she is anattorney who represented Rockwell in several lawsuits againstFleck, DEV, QCC II and other parties pursuant to Rockwell'sallegations that those parties possessed or misappropriatedRockwell's blueprints. Ruff testified that the first case,Rockwell I, was filed in federal court in 1984 against Fleck andDEV. In 1991 Rockwell initiated the Rockwell II litigation instate court against DEV, Fleck and QCC II. QCC and Rockwellsettled the Rockwell II case for $3,300.00. The third Rockwellcase (the "Rockwell III" litigation) was filed in federal courtin 1992 against Fleck.

It is not in dispute that in 1989 the federal magistrate inthe Rockwell I litigation found in favor of Fleck and thatdecision was later overturned by the Seventh Circuit. TheRockwell I litigation ultimately ended with an injunction beingentered against Fleck in 1993. The Rockwell III litigation alsoended against Fleck in 1993 when Fleck signed a consent decree tosettle the litigation in which he admitted misappropriating tradesecrets from Rockwell.

William Guckien testified for QCC II that he and Stonehampurchased the assets of QCC I from Fleck. The purchase includedthe blueprints for the replacement parts which QCC I sold, andGuckien averred that those blueprints were of critical importanceto the business. After QCC II settled the Rockwell IIlitigation, it was no longer able to use the 53 blueprints whichRockwell had claimed. As a consequence, QCC II could no longerobtain the parts described by those blueprints at competitiveprices. Thus, according to Guckien, QCC II was not able toeffectively compete with other companies in the replacement partsbusiness and it was resultantly forced to shut down. QCC IIceased making payments owed to Fleck and Kel-Keef on the purchaseagreement and the non-competition agreement because Fleck hadadmitted in a consent decree pursuant to the Rockwell IIIlitigation that he had obtained the blueprints illegally. Fleckand Kel-Keef then sued QCC II in chancery demanding paymentpursuant to the purchase and non-competition agreements. QCC IIresponded by suing Fleck and Kel-Keef at law for breach ofcontract and fraud.

Mark Bischoff testified for Kel-Keef that he was theattorney who represented Fleck and QCC I during the sale of QCCI's assets to Stoneham and Guckien's company, CHI. Bischofftestified that he told the buyers about the Rockwell Ilitigation; that Fleck and QCC I did not want to make anyrepresentations concerning it; and that they should look intothat litigation. Bischoff further stated that the buyers wereencouraged to contact the attorneys for Rockwell. At one pointin the negotiations, the attorney for the buyers asked for anindemnification agreement which would hold Fleck and DEVresponsible for any damages sustained by QCC II as a result ofthe Rockwell litigation; however, Fleck refused to consent tosuch an indemnification agreement. Bischoff averred that anattorney for the buyers (CHI) told him that they would "live withthe Rockwell situation."

Robert Fleck, the president of Kel-Keef, testified for Kel-Keef. Fleck averred that in 1989 he did not believe that he hadmisappropriated trade secrets from Rockwell. He further statedthat in 1989, on the day of the closing, the magistrate judge inthe Rockwell I litigation found in his favor. That ruling waslater overturned on appeal, and Fleck identified an injunctionwhich was entered against him pursuant to the Rockwell Ilitigation on July 26, 1993. Fleck also identified a consentdecree which he had signed on December 14, 1993, pursuant to theRockwell III litigation. In the consent decree Fleck admittedthat while he was employed by DEV he utilized misappropriatedblueprints and other Rockwell trade secrets for the benefit ofDEV.

The transaction for the sale of the assets of QCC I wasaccomplished through eleven documents, which Stoneham identified. The relevant documents are summarized below. CHI received apurchase agreement, a non-competition agreement and a bill ofsale. The Asset Purchase Agreement ("purchase agreement")between QCC I and CHI provides that the assets of QCC I will besold to CHI in exchange for a total of $160,000 to be paid overfive years. Article IV of the purchase agreement is entitled"Representations and Warranties of Seller and of Fleck" and itcontains a warranty of title stating that the seller has good,exclusive and marketable title to the sold assets, except as setforth in schedule 4.6 which does not list anything relevant tothis appeal. Article IV also states that the seller and Fleckhave not knowingly made any statement which contains any untruestatement of material fact or omits a material fact. Article VIis entitled "Post-Closing Matters" and it contains a sectionentitled "Survival of Representations and Warranties." Thissection states that the representations and warranties set forthin the agreement will remain in full force and effect and shallsurvive the closing and the transfer of the assets for two years.

CHI also received a "Noncompetition Agreement" which wassigned contemporaneously with the purchase agreement and providedthat Fleck agreed not to compete with CHI for five years. Inconsideration for this promise, the agreement provided that CHIwould pay $125,000 to Fleck in five annual installments of$25,000 per year.

QCC I received several instruments, of which the relevantdocuments are summarized below. The "Non Negotiable PromissoryNote" provided for CHI to make payments to QCC I totaling$160,000 over five years pursuant to the sale effected by thepurchase agreement and the bill of sale. QCC I also received a"Guaranty" which provides that Guckien and Stoneham personallyguaranty full and prompt payment of the promissory note and thenon-competition agreement by CHI.

QCC I and Fleck also received a letter ("the side letter")from CHI and its president, Stoneham. The letter states that thepurchasers of the assets of QCC I have been fully informed aboutthe lawsuit between Rockwell and DEV, and that the purchaserunderstands that QCC I is "making no representations orwarranties with regard to this lawsuit." The letter furtherstates that in the event of any potential claims with regard tothe lawsuit each party "shall be responsible for their respectiveclaim."

The initial action in this consolidated case was filed inchancery by Kel-Keef and Fleck against QCC II, Guckien andStoneham (the "chancery action"). The suit contained six counts. Two counts, III and VI, were dismissed without prejudice beforetrial and are not relevant to this appeal. In count I Kel-Keefsued QCC II for its alleged breach of the promissory note, and incount II Kel-Keef asked for enforcement of the personal guaranteeof the promissory note against Guckien and Stoneham. In count IVFleck sued QCC II for breach of the non-competition agreement,and in count V Fleck asked for enforcement of the personalguarantee of the non-competition agreement. The suit allegedbreach by QCC II of the promissory note, breach of the non-competition agreement, and asked for enforcement of the guarantyas against the individual sureties, and foreclosure on thesecured assets. QCC II later filed a separate suit at law (the"suit at law") against Kel-Keef and Fleck arising from QCC II'sloss under the Rockwell II litigation. Stoneham and Guckien werenot parties to this suit. The suit sought recovery against Kel-Keef and Fleck on four counts. Count III alleged violations ofwarranties pursuant to the uniform commercial code, and the courtgranted a directed verdict for Fleck and Kel-Keef on this countduring trial. Count IV alleged deceptive business practices andis not involved in this appeal. Count I alleged fraud and it wasultimately submitted to the jury. Count II alleged breach ofcontract. A directed verdict was granted in favor of Fleck oncount II, but count II was submitted to the jury as against Kel-Keef. The two cases were consolidated, and tried simultaneously.The chancery action was tried to the court, and the action at lawwas tried to the jury.

In the action at law the jury returned a verdict in favor ofQCC II and against Kel-Keef on the breach of contract count and averdict in favor of Kel-Keef and Fleck on the fraud count. Thejury awarded QCC II damages of $60,000. In the chancery actionthe court initially found that Fleck (Kel-Keef)⁽¹⁾ had breached thepurchase agreement and that the breach was material. QCC II wasthus excused from making payments under the purchase agreementand the promissory note. The court found that the non-competition agreement was a separate contract between QCC II andFleck individually which had not been breached by the promisor,Fleck, and that QCC II was still obligated to make paymentspursuant to it. The court directed the parties to submit amendedpetitions for attorney fees.

Both sides filed motions to reconsider. Kel-Keef arguedthat QCC II could not receive damages for breach of the purchaseagreement and be excused from making further payments under thepurchase agreement as that constituted a double recovery for QCCII. Kel-Keef further argued that QCC II had elected the remedyof damages and therefore could not rescind the contract asrescission disaffirms the contract and is thus inconsistent withseeking a remedy of damages which affirms the contract. Onreconsideration the court agreed with Kel-Keef's position andentered its final judgement in light of the reconsideration onJune 11, 1999. The court entered judgement in the suit at lawfor QCC II and against Kel-Keef on count II (breach of contract)for $60,000. The court entered judgement for Fleck on count IIand for Fleck and Kel-Keef on count I. In the chancery case thecourt entered judgement on counts I and II in favor of Kel-Keefand against QCC II, Stoneham and Guckien, jointly and severally.The court therefore found that Kel-Keef was entitled to recoverfor the purchase agreement in its chancery suit subject to asetoff of the jury's award of $60,000 damages in the suit at lawand the award of $67,118.87 in attorney fees which the courtawarded pursuant to the suit at law. The court therefore foundthat QCC II was required to pay the remaining balance under thepromissory note subject only to the two setoffs. On counts IVand V the court entered judgement in favor of Fleck and againstQCC II, Guckien and Stoneham.

This appeal followed. QCC II, Guckien and Stoneham appealand Kel-Keef and Fleck cross-appeal from the court's entry offinal judgement. QCC II argues on appeal that the trial courterred as a matter of law in concluding that QCC II had electedthe remedy of damages; that Kel-Keef's material breach of thecontract excused QCC II from any further obligation to pay; thatthe non-competition agreement was part of a single contract forthe sale of a business and Kel-Keef's breach of the purchaseagreement thus also excuses QCC II from performing under the non-competition agreement; that the trial court abused its discretionby excluding QCC II's proffered expert witness on damages; andthat the trial court erred by excluding evidence about a lawsuitwhich existed at the time of the contract and was not disclosedby Kel-Keef. On cross-appeal, Kel-Keef argues that the trialcourt erred in not granting its motion for a directed verdict onthe breach of contract claim in the case at law; that there wasinsufficient evidence as to damages; and that QCC II is notentitled to attorney fees or costs.

ANALYSIS⁽²⁾

I. QCC II'S APPEAL

A. ELECTION OF REMEDIES

QCC II first argues that the trial court erred in holdingthat QCC II elected the remedy of damages for Kel-Keef's breachof the contract by suing for damages, even though final judgementhad not yet been entered on QCC II's suit at law for damages. QCC II concedes that it cannot both be excused from performanceunder the contract and receive damages as those remedies areinconsistent. Damages affirm the contract, while the otherremedy repudiates it; however, QCC II argues that it expresslyelected to abandon its verdict for damages in the suit at law infavor of being excused from performance of the contract in thechancery suit. Kel-Keef argues that QCC II elected damages asits remedy by filing the suit at law seeking damages, and that itwas not necessary for the suit at law to be prosecuted tojudgement for an election to occur.

The general rule regarding election of remedies is wellsettled. The doctrine of election of remedies "should beconfined to cases where (1) double compensation of the plaintiffis threatened or (2) the defendant has actually been misled bythe plaintiff's conduct or (3) res adjudicata can be applied." Faber, Coe & Gregg, Inc., v. First National Bank of Chicago, 107Ill. App. 2d 204, 211, 246 N.E.2d 96, 100 (1969). Accord,International Association of Machinists & Aerospace Workers v.Industrial Commission, 79 Ill. 2d 544, 550-51, 404 N.E.2d 787,789 (1980). In this case the trial court was presented with asituation where double compensation was threatened. QCC II wasinitially both excused from performing under the purchaseagreement and awarded damages for Kel-Keef's breach of thepurchase agreement, and QCC II has conceded that these remediesare inconsistent.

It is clear that the "prosecution of one remedial right tojudgement or decree constitutes an election barring subsequentprosecution of inconsistent remedial rights." Majcher v. LaurelMotors, Inc., 287 Ill. App. 3d 719, 726, 680 N.E.2d 416, 421(1997). However, the question of whether a suit not prosecutedto judgement constitutes an election barring the plaintiff froman inconsistent remedy is less well settled. See E.H. Schopler,Annotation, Conclusive Election of Remedies as Predicated onCommencement of Action, or its Prosecution Short of Judgement onthe Merits, 6 A.L.R. 2d 10, 70 (1949) (in Illinois "no casestating a general rule on [this] subject *** has been found; andnone can safely be deduced from the cases"). See also Faber, Coe& Gregg, 107 Ill. App. 2d at 210, 246 N.E.2d at 99 (declining todiscuss, reconcile or distinguish the cases on this issue, ratherfalling back on the general rule and refusing to apply thedoctrine of election of remedies). But see Crown Life InsuranceCompany v. American National Bank and Trust Company of Chicago,35 F.3d 296, 299 (7^th Cir. 1994) (finding no election of remedy bya party that expressed an intent to declare a forfeiture of acontract because an "election of remedy only occurs when a partyaccepts the benefit of pursuing the initial remedy" and noforfeiture had actually been effected).

We find the rule stated in the Restatement (Second) ofContracts to be persuasive.

"If a party has more than one remedy under the rulesstated in this Chapter, his manifestation of a choiceof one of them by bringing suit or otherwise is not abar to another remedy unless the remedies areinconsistent and the other party materially changes hisposition in reliance on the manifestation." Restatement (Second) of Contracts