As in other cases of alternative remedies, there is some difficulty in determining what constitutes such an election of one remedy as precludes a resort to the other.1 The prosecution of one remedy to judgment must be conclusive, since all rights of the injured party are merged in the judgment.2 The commencement of an action to enforce one remedy, by the weight of authority, is decisive.3 Ordinarily inaction has no significance, but the retention, for an unreasonable time, of money or property received under the contract,4 or the failure, in the case of a contract requiring more than one act by the other party, to give reasonable notice that further performance will not be accepted,5 may properly be regarded as evincing an election not to seek restitution.
1 Williston, "Sales," Sec. Sec. 608, 610, and cases there cited.
2 Wilson v. Burks, 1883, 71 Ga. 862; Todd v. Leach, 1897, 100 Ga. 227; 28 S. E. 43 ; Todd v. McLaughlin, 1900, 125 Mich. 268; 84 N. W 146; Brewster v. Wooster, 1892, 131 N. Y. 473 ; 30 N. E. 489 ; Weitzei v. Leyson, 1909, 23 S. D. 367 ; 121 N. W. 868; Mason v. Lawing, 1882, 10 Lea (78 Tenn.) 264. In Kicks v. State Bank, 1904, 12 N. D. 576; 98 N. W. 408, where the purchaser of land rescinded because of the vendor's breach, it was held that the value of the purchaser's possession was offset by the interest on the money paid to the vendor.
3 Keener, "Quasi-Contracts," p. 306.