As rescission is only an alternative remedy, and is in derogation of the contract, it is said that a party who wishes to avail himself thereof must manifest his election in some way.96 The may not, after breach of his promise by the defendant, wait any period short of that fixed by the Statute of limitations before deciding whether to sue for the value of the horse or for the recovery of the price.1 Where a plaintiff seeks rescission and restitution, he must not only restore what he has received but his offer of restitution must be kept good.2 Election once made determines the plaintiff's rights.3 Judgment based on the assertion of one alternative is necessarily a conclusive election;4 and the beginning of an action for one form of relief or the other is generally held so.5
93 Howe v. Smith, 27 Ch. D. 89; Sumpter v. Hedges,  1 Q. B. 673; Forman v. The Liddesdale,  A. C. 190; Kane v. Jenkinson, 10 Nat. B. R. 316; Fairchild-Gilmore-Wilton Co. v. Southern Ref. Co., 168 Cal. 264, 110 Fac. 951; North American Dredging Co. v. Outer Harbor etc. Co. (Cal.), 173 Pac. 756; Johnson Forge Co. v. Leonard, 3 Pennew. (Del.) 342, 350, 51 Atl. 305,94 Am. St. Rep. 86; Baston v. Clifford, 68 111. 67, 18 Am. Rep. 547; Purcell v. Sage, 200 111. 342, 65 N. E. 723; Downey v. Riggs, 102 la. 88, 70 N. W. 1091; Getty v. Peters, 82 Mich. 661, 46 N. W. 1036, 10 L. R. A. 465; Feeney v. Bardaley, 66 N. J. L. 239, 49 Atl. 443; Green v. Green, 9 Cow. 46; Ketchum v. Evertson, 13 Johns. 359, 364, 7 Am. Dec. 384; Higgins v. Eagle-ton, 155 N. Y. 466, 50 N. E. 287; Aahbrook v. Hite, 9 Ohio St. 357, 75 Am. Dec. 468; J. K. Armsby Co. v. Grays Harbon Comm. Co., 62 Oreg. 173, 123 Pac. 32. See also Hickock v.
Hoyt, 33 Conn. 553; Wilkinson v. . Blount, 169 Mass. 374, 47 N. E. 1020; Norwood v. Lathrop, 178 Mass. 208, 59 N. E. 650.
94See cases in the preceding note; also supra, Sec. 871.
95 Crowe v. Oscar Barnett Foundry Co., 213 Fed. 864, 219 Fed. 450, 135 C. C. A. 162. See also Francis v. Brown, 22 Wyo. 528, 145 Pac. 750.
96 Avery v;. Bowden, 5 E. & B. 714; Reid v. Hoskins, 5 E. & B. 729; Cornwall v. Henson, L. R. (1900) 2 Ch. 208; Hennessy v. Bacon, 137 U. S. 78, 34 L. Ed. 605,11 Sup. Ct. 17; Carney v. Newberry, 24 111. 203; Sanford v. Emory's Adm'r, 34 111. 468; Graham v. Hollo-way, 44 111. 385; Mullin v. Bloomer, 11 la. 360; Supple v. Iowa State Ins. Co., 58 la. 29,11N. W. 716; Weeks v. Robie, 42 N. H. 316; Swazey v. Choate Mfg. Co., 48 N. H. 200; Andrews v. Cheney, 62 N. H. 404. Cf. Dow v. Harkin, 67 N. H. 383, 29 Atl. 846; Levy v. Loeb, 89 N. Y. 386, 390; Higby v. Whittaker, way in which election must be manifested may vary in different cases. Formal notice is certainly not always requisite, and bringing an action promptly for restitution is generally held sufficient.97 It is also said that one who wishes to rescind must manifest his election to do so without undue delay, or the right will be lost.98 It seems probable, however, that this is true only where the party seeking rescission has received money or property which he must restore as a condition of relief,99 or where there is further performance due under the contract from the other party which in the absence of notice he might suppose would be accepted in spite of his prior breach. The cases though containing broader statements generally fall in these classes. There seems no reason why a plaintiff who has paid a sum of money for the defendant's promise to give him a horse,
8 Ohio, 196; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677; Phillips v. Herndon, 78 Tex. 378, 14 S. W. 867. See also cases on anticipatory breach, supra, f 1322, where the courts refer habitually to the necessity of manifesting an election to treat repudiation as a rescission plus a right of action.
97 Thresher v. Stonington Bank, 68 Conn. 201, 36 Atl. 38; Graham v. Holloway, 44 111, 385; Brown v. &U Paul, etc., Ry. Co., 36 Minn. 236, 31 N. W. 941; Graves v. White, 87 N. Y. 463. And see Kirby v. Harrison, 2 Ohio St. 326,59 Am. Dec. 677. In New Hampshire, however, it is held some manifestation of election must precede such an action. See New Hampshire cases cited in the preceding note. In Texas it is laid down, at least in cases of sales of real estate, that "where there has been part performance by the vendee, as paying a portion of the purchase money or taking possession and making improvements under the contract, he would be entitled to reasonable notice of the vendor's intention to rescind. The reason of this rule is obvious. He may be able to give a reasonable excuse for his failure to fully perform that would entitle him in equity to protection to the extent he had performed. If the vendee has actually abandoned the contract or has so acted as to create the reasonable belief on the part of the vendor that he has abandoned it, the vendor may rescind without notice of his intention, notwithstanding the part performance by the vendee." Kennedy v. Embry, 72 Tex. 387, 390, 10 S. W. 88.
98 Fennessy v. Bacon, 137 U. S. 78, 34 L. Ed. 605, 11 Sup. Ct. 17; Collins v. Tigner, 5 Del. 345, 60 Atl. 978; Mizell v. Watson, 57 Fla. Ill, 49 So. 149; Harden v. Lang, 110 Ga. 392, 395, 36 S. E. 100; Carney v. Newberry, 24 111. 203; Axtel v. Chase, 77 Ind. 74, 83 Ind. 546, 554; Olson v. Brison, 129 la. 604,106 N. W. 14; Mills v. Osawatomie, 59 Kans. 463, 53 Pac. 470; World Pub. Co. v. Hull, 81 Mo. App. 277; Alfree Mfg. Co. v. Grape, 59 Neb. 777, 82 N. W. 11; Lawrence v. Dale, 3 Johns. Ch. 23; Caswell v. Black River Mfg. Co., 14 Johns. 453; North Dakota Civ. Code, Sec. 3934; Oklahoma Stat., Sec. 868; Thomas v. McCue, 19 Wash. 287, 53 Pac. 161, 74 Am. Dec. 662, n., and see cases cited, supra, Sec. 1462, in which rescission was held permissible for breach of warranty.
99 As under an executed sale rescinded for breach of warranty. See cases on rescission of warranty, supra, Sec. 1462.