This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If one of the parties to a contract promises to do one of two or more specified things, and the contract contains no provision either in express terms or by fair implication as to which party has the right to determine which of such things shall be performed, the right of election is in the promisor up to the time of the breach.1 After the time for performing the contract has passed, the promisor loses the right of election,2 and such right of election passes over to the promisee.3 Where a vendor agrees to deliver goods at one of three places by a certain time, he must exercise his option of delivering at the place of his choice before such time, or he loses the right of election.4 If A has the right to discharge his obligation to B within a certain time by conveying certain property or paying a certain sum of money and A does neither, B acquires the right of election.5 The notice of election must be sufficiently definite and certain to apprise the adversary party of the choice which has been made.6 If an election under a covenant reserving to the promisor the right to perform in the alternative has once been made, such election is final.7
10 Olympia Mining Co. v. Kerns, 13 Ida. 514, 01 Pac. 92.
11 Henderson Warehouse Co. v. Brand, 105 Ga. 217, 31 S. E. 551.
12 First National Bank v. Park, 117 Ia. 552, 91 N. W. 826.
13 P. Dougherty Co. v. Gring, 89 Md. 535, 43 Atl. 912.
14 Roudebush v. Gannon 92 Wash. 508, 159 Pac. 680.
15 Tysor v. Adams, 116 Va. 239, 51 L. R. A. (N.S.) 1197, 81 S. E. 76.
16 United States Fidelity & Guaranty Co. v. Downey, 38 Colo. 414, 120 Am St. Rep. 128, 10 L. R. A. (N.S.) 323. 88 Pac. 451.
The contract may, however, provide either in express terms or by fair implication that the promisee is to have the choice of determining which of the different things is to be done.8