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.
To operate as a waiver the conduct of the party not in default must be such as to show affirmatively his intention to treat the contract as still in effect.1 This intention may either actually exist or it may so appear to exist as to mislead the adversary party and thus work an estoppel.2 Silence by the party not in default does not of itself amount to a waiver.3
421; 75 N. W. 938. For similar facts see Weston v. Syracuse, 158 N. Y. 274; 70 Am. St. Rep. 472; 43 L. R. A. 678; 53 N. E. 12.
4 Farmers', etc., Bank v. Wood-ell, 38 Or. 294; 61 Pac. 837; 65 Pac. 520; Moore v. Carter, 146 Pa. St. 492; 23 Atl. 243.
5 Moore v. Carter, 146 Pa. St. 492; 23 Atl. 243.
6 Yorston v. Brown, 178 Mass. 103; 59 N. E. 654.
7 Skinner v. Norman, 165 N. Y.
565; 80 Am. St. Rep. 776; 59 N. E. 309.
8 Giles, etc., Co. v. Chase, 149 Mass. 459; 14 Am. St. Rep. 439; 4 L. R. A. 480; 21 N. E. 765.
1 Boulder, etc., Co. v. Maxwell, 24 Colo. 87; 48 Pac. 815; Wilkinson v. Mfg. Co., 169 Mass. 374; 47 N. E. 1020.
2 Starr v. Ship Co., 68 Fed. 234.
3 Eaton v. Gladwell. 108 Mich. 678; 06 N. W. 598.
If the promisor wrongfully refuses performance the fact that the promisee is still ready and willing to perform if the promisor will continue to perform, does not of itself show that he has not accepted the promisor's renunciation as a final breach terminating the contract.4 So his unaccepted offer to continue the contract after breach on certain specified terms does not waive such breach.5 Conduct in strict compliance with the contract does not of itself amount to a waiver of any of its terms. Acceptance of a temporary bridge provided for by the contract does not amount to acceptance of a permanent bridge constructed thereafter under the contract.6 Conduct which •clearly shows the intention of the promisee not to accept the performance tendered, does not amount to a waiver of breach. Thus if the owner denies that the contractor has performed his •contract, but agrees to pay the contractor's workmen, such payment does not waive breach by the contractor.7 Still less does conduct by the promisee, which amounts merely to preparation on his part for performance constitute an acceptance and waiver of breach. Thus, where a number of farmers had contracted with A for the construction of a ditch, the fact that they levied an assessment upon themselves, and thereby raised the contract price is not an acceptance of A's performance.8 A waiver of one breach does not amount to a waiver of other and subsequent breaches.9 Thus where a contract is payable in installments, waiver of a breach by delay in paying earlier installments is not a waiver of the right to require the subsequent installments to be paid when due, if the promisor is not misled by the conduct of the promisee.10 This is especially clear where the party in default is notified that subsequent breaches will not L45 be waived.11 So waiver of a breach by failure to pay a premium when due, as a ground of forfeiture, and giving an extension of time by taking a note therefor, does not waive a right secured by the contract to forfeit the policy if such note is not paid when due.12 Paying certain installments under a building contract, without the certificate of the architect or engineer, does not waive the owner's right to require such certificate before paying the final installments.13 Making part payments on a building contract does not of itself waive defects in performance so as to amount to a final acceptance of the work.14. Waiver of a provision of a contract as to the time of performance does waive provisions as to the method of performance.15 Under a contract to raise an employe's salary if he abstains from drinking and gambling, refraining from discharging him for the continuation of such condition, does not waive the condition as to a increase of salary.16
4 Mutual, etc., Association v. Taylor, 99 Va. 208; 37 S. E. 854.
5 Sheffield Furnace Co. v. Coke Co., 101 Ala. 446; 14 So. 672.
6 Stimson Mill Co. v. Traction Co., 141 Cal. 30; 74 Pac. 357.
7 Gilliam v. Brown, 116 Cal. 454; 48 Pac. 486.
8 Gilliam v. Brown, 116 Cal. 454; 48 Pac. 486.
9 Disbrow v. Harris. 122 N. Y. 362; 25 N. E. 356; Patterson v. Glassmire, 166 Pa. St. 230; 31 AtL 40.
10 San Francisco Bridge Co. v. Improvement Co., 119 Cal. 272; 51 Pac. 335; Wilkinson v. Mfg. Co., 169 Mass. 374; 47 N. E. 1020; Herman v. Gieseke (Tex. Civ. App.), 33 S. W. 1006.