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.
In order that acceptance by the promisee may constitute waiver of breach, the promisee must have a choice between accepting and rejecting the work done. If rejection is for any reason impossible, his conduct should not be looked upon as a waiver of a breach. Questions of this sort often arise under building contracts. One upon whose land the building has been erected by another has, in the view of many courts, no fair choice between accepting or rejecting the work done. Unless he takes possession of the property, he is either obliged to abandon his land or to remove or tear down the building erected, often at great expense. Accordingly it has been held that the mere fact that the owner takes possession of a building erected upon his land, is not such acceptance as to waive the production of the architect's certificate of complete performance required by the terms of the contract;1 nor is it an acceptance of the performance tendered so as to entitle the contractor to recover upon the contract.2 Thus the use of a cathedral is not of itself acceptance of performance of a contract for tiling the roof thereof.3 So making use of steps and a walk leading from a door to the street,4 or making use of a boiler placed in a factory to furnish motive power,5 do not of themselves waive breaches of such contracts.
11 Strauss v. Russell Co., 85 Fed. 589.
12 Thompson v. Ins. Co., 104 U. S. 252.
13 Bradley Currier Co. v. Bernz, 55 N. J. Eq. 10; 35 Atl. 832; Yahr v. School District, 99 Wis. 281; 74 N. W. 779.
14 Hattin v. Chase, 88 Me. 237; 33 Atl. 989.
15 Building contract. Jacksonville, etc., By. v. Woodworth, 26 Fla. 368; 8 So. 177. Mining contract. Murray v. Heinze. 17 Mont. 353; 42 Pac. 1057; 43 Pac. 714.
16 Van Vleet v. Hayes, 56 Ark. 128; 19 S. W. 427.