¶1concurring in part and dissenting in part.
¶2Although I concur in that portion of the majority opinion affirming the judgment of the trial court, I respectfully dissent from that portion of the opinion remanding the case for a new trial if plaintiff chooses to amend its petition to assert a claim for breach of contract or for negligent repairs. It was implicit throughout the oral argument on appeal that plaintiff was aware at the trial level of a cause of action based on one of the alternative theories heretofore mentioned but knowingly proceeded on the theory of fraud in hopes of enhancing the amount of recovery by seeking both compensatory and punitive damages. Doing so was calculated rather than an unwitting choice. See generally: Farmer v. Taylor, 301 S.W.2d 429 (Mo.App.1957).