Oliver Wendell Holmes, Jr., Bierce v. Hutchins — Opinion of the Court
“ But the assertion of a lien by one who has title, so long as it is only an assertion, and nothing more, is merely a mistake. It does not purport to be a choice, and it cannot be one, because the party has no right to choose. The claim in the lien suit, as was said in a recent case, was not an election, but an hypothesis. ”
Oliver Wendell Holmes, Jr., Bierce v. Hutchins — Opinion of the Court
“ He may keep in force or may avoid a contract after the breach of a condition in his favor. Oakes v. Manufacturers' F. & M. Ins. Co. 135 Mass. 248, 249. In all such cases the characteristic fact is that one party has a choice independent of the assent of anyone else. But if a man owns property he has no election to transfer it to another. He cannot make the transfer unless the other assents. And equally, if he owns property subject to be devested by the performance of a condition, he has no election to devest it without performance. ”
Oliver Wendell Holmes, Jr., Bierce v. Hutchins — Opinion of the Court
“ The abortive lien proceedings constitute the election that is supposed to have brought the appellant's title to an end. We have not gone into further particulars because there can be no doubt that to claim a lien upon anything is inconsistent with asserting a title to it, and may be assumed to be sufficient to manifest an election if one is possible. The appellant's allegations in its first petition could give no additional strength to its choice.Election is simply what its name imports ”
