out losing his right to avoid the contract, wait after he comes of age until the time when performance is due from him, or from his co-contractor. That time may come early or late, and only when it does is some action necessary. In other cases the failure to act promptly deprives the party having the right of election of any choice. For instance, though one who has been induced to enter into a contract by fraud may elect after discovering the fraud to avoid the contract, prompt action is in some cases at least essential; the mere lapse of time may destroy the election.46 The same is true of rescission for breach of contract; 47 and so where an agent has entered into an unauthorized contract with a third person, it is "the duty of the principal to act immediately after knowledge, and his passivity or silence will be construed into an acquiescence or satisfaction, so as to protect the innocent third party." 48 Election to take advantage of breach of condition in a contract generally need not be exercised until the time arrives when, by the terms of the contract, the party entitled to elect must render some performance. Then either performing or failing to perform will indicate an election.49 Even prior to that time, however, any conduct which under the circumstances is deceptive except on the assumption that a choice has been made, may amount to an election. § 684. Election does not depend on intention. In a correct definition of waiver wherever that word is used 46 See infra, § 1526. 47 See infra, § 1469. 48 Pacific Vinegar, etc., Works v. Smith, 152 Cal. 507, 511, 93 Pac. 85; and see supra, § 278. 49 "The common expression 'waiving a forfeiture,' though sufficiently correct for most purposes, is not strictly accurate. When a lessee commits a breach of covenant, on which the lessor has a right of re-entry, he may elect to avoid, or not to avoid the lease, and he may do so by deed or by word; if with notice, he says, under circumstances which bind him, that he will not avoid the lease, or he does an act inconsistent with his avoiding, as distraining for rent (not under the statute of Anne), or demanding subsequent rent, he elects not to avoid the lease; but if he says he will avoid, or does an act inconsistent with its continuance, as bringing ejectment, he elects to avoid it. In strictness, therefore, the question in such cases is, has the lessor, having notice of the breach, elected not to avoid the lease? Or has he elected to avoid it? or has he made no election?" Croft v. Lumley, 6 H. L. C. 672, 705, approved in Clough v. London, etc., Co., L. R. 7 Ex. 26. in the sense of election, the requisite of even apparent intention to surrender a right is absent. The law simply does not permit a party in the case supposed to exercise two alternative or inconsistent rights or remedies. Even though he expressly states that he intends to reserve a right, he will, nevertheless, lose it if he takes an inconsistent course. Thus one who continues to receive benefits under a contract and assert rights under it after knowledge of a breach which would justify him in refusing to go on, cannot subsequently set up this breach as an excuse for his own non-performance even though he asserted from the outset, and consistently, that he proposed to do so.50 It is indulging in a fiction which is likely to lead to confusion of thought to express this result by saying that the intention to surrender a right is necessary but that the intention will on occasion be conclusively presumed from circumstances, which do not as a matter of fact necessarily show the existence of such an intention. Expressions of this kind, however, are common enough.51 That intention is not a material fact may 50 Croft v. Lumley, 6 H. L. Cas. 672, 706; Davenport v. Queen, 3 App. Cas. 115. See further infra, § 687. 51 In Insurance Co. v. Wolff, 95 U. S. 326, 330, the court said: "The principle that no one shall be permitted to deny that he intended the natural consequences of his acts when he has induced others to rely upon them, is as applicable to insurance companies as it is to individuals, and will serve to solve the difficulty mentioned. This principle is one of sound morals as well as of sound law, and its enforcement tends to uphold good faith and fair dealing. If, therefore, the conduct of the company in its dealings with the assured in this case, and with others similarily situated, has been such as to induce a belief that so much of the contract as provides for a forfeiture if the premium be not paid on the day it is due, would not be enforced if payment were made within a reasonable period afterwards, the com pany ought not, in common justice, to be permitted to allege such forfeiture against one who has acted upon the belief, and subsequently made the payment. "The company, notwithstanding the provision in the policy that its agents were not authorized to waive forfeitures, sent to them renewal receipts signed by its secretary, to be used when countersigned by its local manager and cashier, leaving their use subject entirely to the judgment of the local agent. The propriety of their use, in the absence of any fraud in the matter, could not afterwards be questioned by the company." See also Grippo v. Davis, 92 Conn. 693, 104 Atl. 165; Fraser v. Ætna L. Ins. Co., 114 Wis. 510, 523, 90 N. W. 476. An exceptional and, it must be added, an erroneous decision to the contrary is Block v. Taylor (Mich.), 168 N. W. 536. The defendant had be seen also from the converse case. If a party erroneously supposing he had an election offered him actually intended to surrender a right and assert a supposed alternative which did not exist, the right which in fact he had would not be lost in the absence of circumstances of promissory estoppel. 52 It should be observed that though intent to surrender a right is not essential to election, the question whether an election has De contracted to buy a number of barrels of whiskey, and after two had been delivered and found inferior, he ordered out of bond two more of the barrels, but thereafter refused to continue the contract or to pay for what he had received. When sued he set up the inferiority of the goods. The plaintiff, however, contended that the defendant by ordering more after he had "tested the first two barrels affirmed the contract, and he was therefore estopped from repudiating it thereafter." fendant's explanation of his act in this regard was: "I wanted to bring the lawsuit here instead of having to go to New York City to try it." The court submitted this question to the jury instructing them if they found that the second two barrels ordered in February were so ordered as a continuation of the deal under the original order that such action would constitute an affirmance of the original order and work an estoppel against defendant, but further: "If, on the other hand, this order was but an attempt on Taylor's part to regain the amount of money that he claimed was fraudulently obtained from him in excess of the price of the goods and expenses of the barrels of whiskey that he received, and you so find from the proofs, then you are warranted in finding that the second order does not operate as an estoppel." The jury found for defendant and the upper court stated as its conclusion: "There has been no miscarriage of justice in this case, and the judgment is affirmed." 52 "A party has an election only between existing, not supposed, rights. The plaintiff could not destroy his rights under the lease by mistakenly following other supposed rights which turned out not to exist. That would be to put him, not to an election, but to a correct estimate of his right under pain of forfeiture." Doyle v. Hamilton Fish Co., 234 Fed. 47, 51, 148 C. C. A. 63. So in Asher v. Pegg, 146 Iowa, 541, 543, 123 N. W. 739, 30 L. R. A. (N. S.) 890, the court said: "If a claim is made which, as developed in subsequent proceedings, does not exist, then the claimant is not barred from asserting in an independent action that an inconsistent claim existed entitling him to legal redress. Zimmerman v. Robinson, 128 Iowa, 72, 102 N. W. 814; Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 L. Ed. 828; Water, L. & Gas Co. v. City of Hutchinson, 160 Fed. 41, 90 C. C. A. 547, 19 L. R. A. (N. S. 219; Sullivan v. Ross' Estate, 113 Mich. 311, 71 N. W. 634, 76 N. W. 309; Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710; Calhoun County v. Art Medal Const. Co., 152 Ala. 607, 44 So. 876." Cf. the decisions in Globe & Rutgers Ins. Co. v. Prairie &c. Co., 248 Fed. 452, 456, 160 C. C. A. 462; Bersche v. Globe Ins. Co., 31 Mo. 546, where it was held that after an insurance company had expressed an election to restore destroyed property, it could not thereafter deny liability because of any facts then known. been made may depend upon whether certain admitted acts are to be attributed to the performance of a previous obligation or to the creation of a new one, and this in turn may depend on apparent if not actual intention-not, however, intention to relinquish a right, but intention to continue performance of the old obligation.53 § 685. Whether knowledge of facts is essential for election. Though no element of promissory estoppel may be necessary to constitute a binding election, such an element frequently, if not usually, exists. The choice of an alternative right by one entitled thereto will often be followed by action of the other party based on justifiable reliance upon the apparent attitude of the former; or at least the situation of the parties will be so materially changed as to make a new choice unfairly prejudicial. Where either of these circumstances exists, knowledge of facts by the party entitled to choice should not be necessary to make the election binding. 54 Where, however, neither circumstance enters into the case an election should not be binding without either actual knowledge or blameworthy ignorance of the material facts. The principle of election is an equitable one and unless the other party has been deceived or the situation changed it is inequitable to regard a choice as final unless the party having the right of election was aware, or should have been aware, of all material facts making one 53 In Alsens &c. Cement Works v. Degnon Contracting Co., 222 N. Y. 34, 118 N. E. 210, the defendant was entitled by contract to 175,000 barrels of cement to be ordered before March 1, at $1.41 a barrel, 36,000 barrels had not been ordered prior to March 1, but 1900 barrels were ordered and supplied between that date and the ensuing May. The seller claimed the market value for these barrels on the ground of a new implied contract. The buyer contended that he was liable for only the contract price of $1.41. The court rightly held the question one of fact, but held that the jury must determine whether the intention to waive existed. It seems clear that the 54 See the preceding section. If 55 In Dushane v. Beall, 161 U. S. 513, 40 L. Ed. 791, 16 S. Ct. 637, the question concerned the right of election of an assignee in bankruptcy to take or reject onerous property belonging to the bankrupt. It was held that in the absence of knowledge by the assignee of the existence of the property in question, his conduct in failing to reduce it to possession could not be regarded as an election to refuse the property and allow the bankrupt to retain it. choice desirable or the reverse.55 It is often stated in positive terms that knowledge of facts is necessary; 56 but blameworthy ignorance is sufficient; 57 and it is better to say so plainly than to indulge in a fictitious conclusive presumption of knowledge.5* ments it had no knowledge that Mosiman was sick when he paid them, but it did know that the certificate of health which it had a right to require had not been furnished, and in waiving the prescribed showing in that regard it waived all inquiry into the member's physical condition. Of course, if it had been misled by any false representation or fraudulent concealment a different situation would be presented. Spitz v. Mutual Ben. Life Assn., 25 N. Y. S. 469, 472, 5 N. Y. Misc. 245; Rice v. New England Mutual Aid Soceity, 146 Mass. 248, 15 N. E. 624.” In Knights of Pythias v. Kalinski, 163 U. S. 289, 298, 41 L. Ed. 163, 16 S. Ct. 1047, the court said: "The continued receipt of assessments upon Kalinski's certificate up to the day of his death was a waiver of any technical forfeiture of the certificate by reason of the non-payment of the lodge dues. Granting that the continued receipt of premiums or assessments after a forfeiture has occurred will only be construed as a waiver when the facts constituting a forfeiture are known to the company, Insurance Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387; Bennecke v. Insurance Co., 105 U. S. 355, 26 L. Ed. 990, this is true only of such facts as are peculiarly within the knowledge of the assured. If the company ought to have known of the facts, or with proper attention to its own business, would have been apprised of them, it has no right to set up its ignorance as an excuse. "See also infra, § 720. 56 "Acquiescence and waiver are always questions of fact. There can be neither without knowledge. The terms import this foundation for such action. One cannot waive or acquiesce in a wrong while ignorant that it has been committed. Current suspicion and rumour are not enough. There must be knowledge of facts which will enable the party to take effectual action." Pence v. Langdon, 99 U. S. 578, 581, 25 L. Ed. 420. See also Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.) 729, 8 Ann. Cas. 1024; Georgi v. Texas Co., 225 N. Y. 410, 122 N. E. 238. 57 In Mosiman v. Benefit Association, 82 Kans. 670, 674, 109 Pac. 413, the court said, in speaking of the effect upon an insurance contract already in default, of receiving payment of an assessment: "It has been held under similar circumstances that the acceptance of payment from a member under suspension, without knowledge of his illness, cannot effect a waiver. Knights of Pythias v. Quinn, 78 Miss. 525, 29 So. 826; United Order of the Golden Cross v. Hooser, 160 Ala. 334, 49 So. 354. We do not find the reasoning convincing. True, when the association accepted the delinquent assess 58 In Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 117, 105 N. W. 563, the court said: "It is suggested that there can be no waiver without intent to waive based on knowledge of the facts. True, but one is presumed to |