ELECTION OF RIGHTS OR REMEDIES. The obligation imposed upon a party to choose between two inconsistent or alterna tive rights or claims, in cases where there is clear intention of the person from whom he derives one that he should not enjoy both. 2 Sto. Eq. Jur. § 1075.
A choice shown by an overt act between two inconsistent rights, either of which may be asserted at the will of the 'chooser alone. Bierce v. Hutchins, 205 U. S. 346, 27 Sup. Ct. 524, 51 L. Ed. 828.
Etymologically, election denotes choice, selection out of the number of those choosing. Thus, the election of a governor would be the choice of some individual from the body of the electors to perform the duties of governor. In common use, however, It has come to denote such a selection made by a distinctly defined body—as a board of aldermen, a corporation, or in such a manner that each individual of the body choosing shall have an equal voice in the choice, but without regard to the question whether the person to be chosen is a member of the body or not. The word occurs in law frequently in such a sense, especially in governmental law and the law of corporations. But the term has also acquired a more technical signification, in which it is oftener used as a legal term, which is substantially the choice of one of two rights or things, to each one of which the party choosing has equal right, but both of which he can not have. This option occurs in fewer instances at law than in equity, and is in the former branch, in general, a question of practice.
At Law. In contracts, when a debtor is obliged in an alternative obligation to do one of two things, as to pay one hundred dol lars or deliver one hundred bushels of wheat, he has the choice to do one or the other until the time of payment; he has not the choice, however, to pay a part in each. Pothier, Obl. part 2, c. 3, art. 6, no. 247; Smith v. Sanborn, 11 Johns. (N. Y.) 59. Or, if a man sell or agree to deliver one of two ar ticles, as a horse or an ox, he has the elec tion till the time of delivery,—it being a rule that, "in case an election be given of two several things, always he which is the first agent, and which ought to do the first act, shall have the election ; " Co. Litt. 145 a;
McNitt v. Clark, 7 Johns. (N. Y.) 465; Flem ing v. Harrison's Devisees, 2 Bibb (Ky.) 171, 4 Am. Dec. 691. On the failure of the per son who has the right to make his election in proper time, the right passes to the op posite party; Co. Litt. 145 a; Reid v. Smith, 1 Des. Ch. •(5. C.) 460; Overbach v. Heer mance, Hopk. Ch. (N. Y.) 337, 14 Am. Dec. 546; Waggoner v. Cox, 40 Ohio St. 539; Cor bin v. Fairbanks Co., 56 Vt. 538; Husson v. Oppenheimer, 66 How. Pr. (N. Y.) 306; Mar lor v: R. Co., 21 Fed. 383.
When one party renounces a contract the other party may elect to rescind at once, ex cept so far as to sue upon it and recover for the breach, and he may immediately bring an action, without waiting for the time of performance to arrive or elapse (in such case he cannot treat the contract as subsist ing for any other purpose); L. R. 7 Exch. 114; L. R. 16 Q. B. 460; Hocking v. Ham ilton, 158 Pa. 107, 27 Atl. 836 ; Lovell v. Ins. Co., 111 U. S. 264, 4 Sup. Ct. 390, 28 L. Ed. 423; Dingley v. Oler, 11 Fed. 372; contra, as to a contract for the sale of land, Daniels v. Newton, 114 Mass. 530, 19 Am. Rep. 384. See the cases collected, Ans. Cont. (8th ed.) 355, n. 1. It is a maxim of law that, an elec tion once made and pleaded, the party is concluded; electio semel facto et placitum testatunx non patitwr regressin; Co. Litt 146; Lawrence v. Ins. Co., 11 Johns. (N. Y.) 241.
But an action for enforcing the benefits due under 'a contract conveying property in consideration of support does not preclude an action to rescind on subsequent breaches; Gall v. Gall, 126 Wis. 390, 105 N. W. 953, 5