Alternative promises may be at election of either party, sec 619.

Unless otherwise provided, election is with promisor when mode of performance is alternative, sec 620.

When election is with promisee, he must notify promisor of his choice,

Sec 621

Election limited by its own terms, sec

622. Election is final, sec 623. When one alternative is impossible, the other is imperative, sec 624.

Sec 619

An alternative promise may be at the election of the promisor or of the promisee. The promisor may reserve to himself to do one of two or more things; or he may agree to do one of two or more things at the election of the promisee. He may say, for instance, "I will sell you one of this row of houses, whichever I choose;" or he may say, "I will sell you one of this row of houses, whichever you choose." "When the promisor has the choice, then he is chargeable only in case of his refusing to exercise and effectuate the choice, e. g., only in case he refuses to pick out and convey one of the row of houses. He need not, however, make his election until the time when the promise is to be performed;1 unless when from the nature of the transaction the duty to make a prior notification is to be inferred.2 - How far "option" contracts are illegal, as wagers, is already discussed.3 - When a note is in Alternative promises may be at the election either of promisor or promisee.

1 Townsend V. Wells, 3 Day, 327. 2Aldrich V. Albee, 1 Greenl. 120; Plowman V. Riddle, 7 Ala. 775.

3 Supra, sec 449 et seq. The topic in the text is discussed by Dr. Emil Bernstein, in an essay entitled Zur Lehre vom alternativen Willen und den alternativen Rechsgeschaften, Berlin, the alternative, as when it is payable in money, or furniture, or other specific articles, the debtor has an election to pay in money or such specific articles; and, as we will see more fully hereafter,1 after the day of payment has elapsed without payment, the creditor has the right to demand payment in money.2.

Sec 620

When the election is merely as to the mode of performance, and when it is conditioned on the convenience or capacity of the promisor, then the election is with the promisor; and when an alternative mode of performance is reserved, and the election is not given to the promisee, it ordinarily rests with the promisor.3 Thus, when C. contracted with E. to deliver him "from one to three thousand bushels of potatoes," it was held that C. had the option of delivering any Unless otherwise provided, election is with promisor when mode of perform -ance is alternative.

1878. He takes up the question of the object of alternative obligations, - whether it is both alternatives or neither, or only the alternative that is ultimately chosen. Two conflicting theories are noticed. By the first, both objects are in view at the time of entering into the obligation, and one of these is liberated by the subsequent action determining the choice. By the other theory, there is no object in view until one is finally elected. According to Bernstein, both objects may be regarded as in the creditor's view, and both within the range of the debtor's duty. This distinction is also taken by Windscheid, see Kritische Viertel-jahrschrift fur Gesetzgebung, etc., N. S.vol. iV. 310. - "Die sogenannte alternative Obligation" is the title of a treatise by Dr. Gustav Pescatore, published in Marburg, in 1880. Its object is to establish on the basis of the Roman law a solution of this topic. The maxium; duae res in obligatione, una in solutione, is declared vague and unsatisfactory. The prevalent view among modern German jurists is, that an alternative is a conditional obligation; "if I do not do the one thing, I will do the other." This view, which is held by Fitting, Windscheid, Brinz, and Bernstein, is controverted by Pescatore, who admits, however, that obligations with an option reserved to the creditor are conditional. Only those in which the option is reserved to the debtor he holds are alternative number of bushels he chose between one and three thousand bushels.1 And, as a general rule, "in case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election."2

1 Infra, sec 623.

2 Hey wood V. Heywood, 42 Me. 229 Church V. Feterow, 2 P. & W. 301 Trowbridge V. Holcomb, 4 Oh. St. 38 Choice V. Moseley, 1 Bailey, 136; Plow man V. Riddle, 7 Ala. 775; Mitchell v Gregory, 1 Bibb, 449; Shrewsberry v Buckleys, 4 Bibb, 260; Lawrence v Dougherty, 5 Yerg. 435; Miller V. Mc Clain, 10 Yerg. 245. As to notes pay able in goods, see supra, sec 599.

3 Layton V. Pearce, 1 Doug. 16 Penny V. Porter, 2 East, 2; Small v Quincy, 4 Greenl. 497; Appleton v Chase, 19 Me. 79; Morton V. Webb, 36 Me. 270; Mayer V. Dwinell, 29 Vt. 278; Smith V. Sanborn, 11 Johns. 59 State V. Worthington, 7 Ohio, 171 Church V. Feterow, 2 P. & W. 301.

Sec 6.21. When, from the whole agreement, it appears that the promisee is to have his choice between the alternatives, then the election is to be with him.3 In such case the promisee must notify the promisor of his election, if the more stringent of the alternatives be taken, as a condition precedent to charging the promisor.4 Thus, where a lease provided that the rent should be paid either quarterly or half-quarterly, it was held that the lessor could not distrain at the end of the half-quarter without giving lessee notice of his intention to take the half-quarterly alternative.1 It is otherwise, however, when, from the structure of the agreement, it appears that a notice by the promisee was not intended by the parties.2 - As a general rule, when, from the circumstances of the case, injustice will be done to the party unless notice of the election be previously given to him, then such notice should be given.3 sec 622. The election is limited by its own terms.4 When the party having the option is bound by the contract to exercise it within a certain period, if he let that period elapse without exercising the option, the right is forfeited.5 The same distinction is applicable to "place. If the right to perform an alternative at a particular place is not complied with, e.g., where property is to be delivered at a particular place, or money paid, then the election right is forfeited.6

When election is with promisee, he must notify the promisor of his choice.

1 Small V. Quincy, 4 Greenl. 497. In Disborough V. Neilson, 3 John. Cas. 81, C. agreed to deliver to E., by the first of May, from seven hundred to one thousand barrels of meat, at six dollars a barrel, to be paid on delivery. C. delivered seven hundred barrels, and, before the first of May, tendered to E. three hundred additional barrels. These E. refused. It was held that he was bound to pay for the whole one thousand barrels, the delivery of the final three hundred being at C. 's option.

2 Co. Lit. 145, a; South E. R. R. V. R. R., 17 Q. B. 485. When a sum is payable to A. or B., A. and B. may sue jointly. Willoughby V. Willoughby,.

5 N. H. 244; Osgood V. Pearsons, 4 Gray, 455; Walrad V. Petrie, 4 Wend. 578. That when a promisor is sued on an alternative promise both alternatives must be negatived, see Richards V. Black, 6 C. B. 437; Leigh V. Lillie,.

6 H. & N. 165; Gilman V. Moore, 14 Vt. 457; Plowman V. Riddle, 7 Ala. 775; that when a party is allowed to pay or make satisfaction in one of two ways, he has a right to the way he may choose, Layton V. Pearce, 1 Dougl. 15;.

Brookman's Trusts, L. R. 5 Ch. 182; Tielns V. Hooper, 5 Ex. 853; Elkins V. Parkhurst, 17 Vt. 105. Hence, when money was loaned for the term of six or of nine months, it was held that the borrower, for whose benefit the contract was, had the election as to the time of repayment. Reed V. Kilburn Soc., L. R. 10 Q. B. 264. And where goods are sold on a credit of six or nine months, the duration of the credit is at the election of the purchaser. Price V. Nixon, 5 Taunt. 338; Helps V. Win-terbottom, 2 B. & Ad. 436, cited Leake, 2d ed. 677; see Middlesex V. Thomas, 5C. E. Green, 39; Burkhalter V. Bank, 42 N. Y. 538; Archibald V. Argall, 53 111. 307.

3 Supra, sec 567; Leake, 2d ed. 677; Fordley's case, 1 Leon. 68; Chippendale V. Thurston, 4 C. & P. 98; Roberts V. Beatty, 2 P. & W. 3.

4 Supra, sec 567 et seq.; Leake, 2d ed. 678; Vyse V. Wakefield, 6 M. & W. 442; Rippinghall V. Lloyd, 5 B. & Ad. 742; Watson V. Walker, 23 N. H. 471; Clough V. Hoffman, 5 Wend. 500; Topping V. Root, 5 Cow. 404; and cases cited supra, sec 557, 561.