Sec. 1498. Express Approval Of Performance Tendered

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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.

Sec. 1498. Express Approval Of Performance Tendered

Express acquiescence in performance as tendered, thereby-inducing the adversary party to believe that such performance is accepted as complete performance amounts to a waiver. If the owner of a building in fact acquiesces in and approves of the work as done, such approval amounts to an acceptance,1 and waives objections such as failures to conform to the dimensions specified.2 Accordingly such parts of a building as have been completed, accepted, and paid for by the owner before the entire building is completed, are thenceforth at the owner's risk in case of loss by fire.3 Under some statutes occupying a building is conclusive evidence of its completion.

1 Hanley v. Walker, 79 Mich. 607; 8 L. E. A. 207; 45 N. W. 57; Gillis v. Cobe, 177 Mass. 584; 59 N. E. 455.

2 Fitzgerald v. La Porte, 64 Ark. 34; 40 S. W. 261; Hanley v. Walker, 79 Mich. 607; 8 L. B. A. 207; 45 N. W. 57; Elliott v. Caldwell, 43 Minn. 357; 9 L. E. A. 52; 45 N. W. 845; Haynes v. Church, 88 Mo. 285; 57 Am. Eep. 413; Franklin v. Schultz, 23 Mont. 165; 57 Pac. 1037; Fuller v. Brown. 67 N. H. 188; 34 Atl. 463: Feeney v. Bard-sley, 66 N. J. L. 239: 49 Atl. 443: Anderson v. Todd, 8 N. D. 158; 77

N. W. 599; Bender v. Buehrer, 8 Ohio C. C. 244.

3 Fitzgerald v. La Porte, 64 Ark. 34; 40 S. W. 261.

4Givinnup v. Shies. 161 Ind. 500; 69 N. E. 158.

4 Manitowoc, etc.. Co. v. Glue Co., _ Wis. - ; 97 X. W. 515.

1 Strome v. Lyon. 110 Mich. 680; 68 N. W. 983; Vanderhoof v. Shell, 42 Or. 578: 72 Pac. 126; Slium v. Claghorn, 69 Vt. 45: 37 Atl. 236.

2 Hutchins v. Webster, 165 Mass. 439; 43 N. E. 186.

3 McAlpine v. Female Academy, 101 Wis. 468; 78 N. W. 173.

This is true only where the provisions of the statute requiring such contract to be filed have been fully complied with.4 An approval of proof of printing submitted for examination, and a direction to go ahead and print, is an acceptance of such proof, even though a material misprint was overlooked by both parties to the contract.5 So approval of a clay model of a monument prevents the vendee from subsequently avoiding liability because he is dissatisfied with the plaster cast made therefrom.6 In building contracts a disregard of certain covenants thereof by both parties while the contract is being performed is a waiver of such provisions and a breach thereof cannot be subsequently invoked as a discharge of the contract.7 Thus provisions as to the method of determining extras," or forbidding sub-contracting without the owner's written consent,9 are waived by acting without reference thereto. So terms and specifications in a building contract,10 or a provision requiring the certificate of the architect or engineer before payment,11 may be waived by the parties. So a provision for forfeiture of a contract for printing, in case of assignment, is waived by acting under the Contract with full knowledge of such assignment.12 A contract requiring written notice of defects in an article sold is waived by the vendor's acting upon a verbal notice.13 A provision in a contract to convey land to a corporation to be organized, that the capital stock shall be taken by bona fide and responsible parties, is waived where the promisor becomes a stockholder and acquiesces in the expenditures of money on behalf of the corporation without paying his subscription himself, and with presumptive knowledge of the finandal responsibility of the remaining stockholders.14 A covenant not to use certain realty as a hotel,15 or a covenant to build to a certain line,16 may each be waived by acquiescing in a different use of such realty.