Sec 623

We have already seen that when an election is to be exercised as to rescission or ratification, such election is final.7 The same rule applies when an election is open between alternative conditions. The alternative chosen must be adhered to.8 By failure to avail himself of one alternative, in the way limited by the contract, the promisor becomes finally bound to the other.9 Thus, where rent son, 33 Ala. 668. As to time as a condition see supra, sec 557; infra, sec 881 et seq.

Election is limited by its own terms.

Election is final.

1 Mallam V. Arden, 10 Bing. 299.

2 Townsend V. Wells, 3 Day, 327; supra, sec 567.

3 Plowman V. Riddle, 17 Ala. 775; Aldrich V. Albee, 1 Greenl. 120; supra, sec 567, 571 et seq.

4 Hey wood V. Hey wood, 42 Me. 229; Church V. Feterow, 2 P. & W. 301: Choice V. Moseley, 1 Bailey, 136; Plowman V. Riddle, 7 Ala. 775.

5 Shearer V. Jewett, 14 Pick. 232. As to legality of "option," see supra, sec 453.

6 Stewart V. Donelly, 4 Yerg. 177. As to performance in respect to place, see infra, sec 871 et seq.

7 Supra, sec 290; Benj. on Sales, sec 359; Brown V. Ins. Co., 1 E. & E. 853; Gath V. Lees, 3 H. & C. 558; Lynch V. O'Donnell, 127 Mass. 311.

8 Leake, 2d ed. 679, citing Brown V. Ins. Co., 1 E. & E. 853, in which Lord Campbell, C. J., said: "Where there is an election, given by contract, and the election is made, it is the same as if there had been no election; and the party is absolutely bound to do that which he has elected to do." S. P., Gath V. Lees, 3 H. & C. 558; Heywood V. Hey-wood, 42 Me. 229; Townsend V. Wells, 3 Day, 327; McNitt V. Clark, 7 Johns. 465; Church V. Feterow, 2 P. & W. 301; Choice V. Moseley, 1 Bailey, 136; Laurence V. Dougherty, 5 Yerg. 435; Miller V. McClain, 10 Yerg. 245; Plowman V. Riddle, 7 Ala. 775; Collins V. Whigham, 58 Ala. 438.

9 Stewart V. Donelly, 4 Yerg. 177; Townsend V. Wells, 3 Day, 327; McNitt V. Clark, 7 Johns. 465; Nesbitt V. Pear was reserved by agreement "to be paid quarterly or half-quarterly if required," the landlord, as we have seen, was held to be precluded after taking a series of quarterly payments from the first payment on, from calling for half-quarterly payments.1 sec 624. When one of two alternatives becomes impossible (as where one of two dates becomes impracticable), then the promisor is bound to perform the other alternative.2 When one of the periods has elapsed, then the other becomes obligatory.3 And when a note is payable, at any time before maturity, in specific articles, the election so to pay is terminated by maturity. After that period the payee's right to demand money is absolute.4 An important exception to the above rule exists in cases where one of the alternatives is inoperative under the statute of frauds. In such case " it is manifest that of such alternative engagements no action will lie upon that one which, if it stood alone, could be enforced as being clear of the statute of frauds, because the effect would be to enforce the other; namely, by making the violation of it the ground of an action."5 "The principle of the rule is that where the contract is entire, no one part being severable from the other, and part of it is within the statute, the other part cannot be enforced. To constitute a cause of action on the agreement it was necessary to aver a breach of both alternatives of the promise, and as under the statute there could be no breach of the promise in respect to the land, there could be no cause of action on the promise in respect to the money."6.

When one alternative is impossible, the other is imperative.

1Mallan V. Arden, 10 Bing. 299.

2 Stevens V. Webb, 7 C. & P. 60; infra, sec 328.

3 Choice V. Mosely, 1 Bailey, 136, and cases cited supra, sec 328.

4 Roberts V. Beatty, 2 Pen. & W. 63; supra, sec 328; Church V. Feterow, 2 Pen. & W. 301.

5 Browne, Stat. of Frauds, sec 152. Patterson V. Cunningham, 12 Me. 506; Crawford V. Morrell, 8 Johns. 253; Van Alstine V. Wimple, 5 Cow. 162; Goodrich V. Nickols, 2 Root, 498.

6 White, J., Howard V. Brower, Sup. Ct. Ohio, 1881, 13 Rep. 215; see supra, sec 328.