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.
If the promisee with full knowledge of the facts, voluntarily accepts less than full performance of the contract, the promisee thereby waives such breach of contract as a ground of discharge.1 Thus a clause in a building contract, requiring the contractor to give bond, is waived by allowing him to construct the building without giving such bond.2 The same rule applies where a provision that no sub-contracts shall be let without the owner's written consent is waived by the owner's permitting sub-contractors to do part of the work without objection.3 So a breach of a contract to furnish support is waived by continuing to receive support under such contract.4 Thus a contract for the sale of land, requiring the vendee to pay taxes, is not discharged by vendee's failure to pay such taxes where subsequently the vendor recognizes such contract as in full force.5 If A is to complete a tramway by a certain date, and haul logs for B, and A does not complete the tramway by the date specified, the fact that B urges A to complete it, waives a right given to B by the terms of the contract to forfeit the contract to take charge of and complete the tramway if A does not complete it by the time agreed upon.6 The fact of acceptance as a waiver of promisee's right to invoke a breach of the promisor as a discharge of the contract is especially clear where the promisor tenders a substantial performance of the contract which is accepted by the promisee.7 Acceptance by an engineer or architect who is authorized to represent the owner in a building contract, waives such defects in the material tendered in performance of the contract as could be discovered by exercising ordinary care.8 Other illustrations of acceptance with full knowledge of the facts, amounting to a waiver of breach as a ground for discharge, are found in contracts for constructing waterworks,9 paving streets and alleys,10 constructing ditches,11 constructing a building12 or digging a well, even if the supply of water subsequently fails.13 So a provision that a contract for extension of time on debts by taking the debtor's notes therefor shall not take effect unless all the creditors enter into such contract, is waived by accepting such notes when some creditors have not assented.14 So the right to avoid a contract for the sale of realty,15 as for the vendor's failure to furnish an abstract of title,16 or because of a defect in the title,17 or because a building on the property extends ever the boundary line,18 may be waived, even after a notice of forfeiture has been given, if both parties treat the contract as still in force.19 Delay in avoiding the contract may waive the right to avoid it,20 as where in the meantime the land depreciates in value.21
14 Work v. Welsh, 160 111. 468; 43 X. E. 719.
15 Hemsley v. Hotel Co., 63 N. J. Eq. 804; 52 Atl. 1132; affirming without report, 62 N. J. Eq. 164; 50 Atl. 14.
16 Scollard v. Normile, 181 Mas9. 412; 63 N. E. 941.
1 Westervelt v. Huiskamp, 101 la. 196; 70 X. W. 125; Wiley v. Athol, 150 Mass. 426; 6 L. R. A. 342; 23 N. E. 311; Gray v. New Paynes-ville, 89 Minn. 258; 94 N. W. 721; O'Dea v. Winona, 41 Minn. 424; 43 N. W. 97; Weston v. Syracuse,
158 N. Y. 274; 70 Am. St. Rep. 472; 43 L. R. A. 678; 53 X. E. 12; Tennessee, etc., Co. v. Wilson (Tenn. Ch. App.), 46 S. W. 342.
2 Devlan v. Wells, 65 X. J. 213; 47 Atl. 467. See to the same effect. Ford v. Dyer, 148 Mo. 528; 49 S. W. 1091.
3 Danforth v. Ry., 93 Ala. 614; 11 So. 60.
4 Dunklee v. Hooper, 69 Vt. 65 j 37 Atl. 225.
5Matthews v. Kerfoot, 1(17 111. 313; 47 N. E. 859; Boyiim v. Johnson, 8 N. D. 306; 79 N. W. 149.
6 Thompson Lumber Co. v. Howard (Ky.), 57 S. W. 615; Howard v. Thompson Lumber Co., 106 Ky. 566; 50 S. W. 1092.
7 Fitzgerald v. La Porte, 64 Ark. 34; 40 S. W. 261; Griffith v. Hap-persberger, 86 Cal. 605, 614; 25 Pae. 137, 487; Flaherty v. Miner, 123 N. Y. 382; 25 N. E. 418; Smith v. Alker, 102 N. Y. 87; 5 X. E. 791; Linch v. Elevator Co., 80 Tex. 23; 15 S. W. 208; Laycoek v. Parker, 103 Wis. 161; 79 X. W. 327.
8 Ashland, etc., Co. v. Shores, 105 Wis. 122; 81 X. W. 136; Laycoek v. Moon, 97 Wis. 59; 72 X. W. 372.
9 Creston Waterworks Co. v. Cres-ton, 101 la. 687; 70 X. W. 739; Winfield Water Co. v. Winfield, 51 Kan. 104; 33 Pae. 714: Wiley v. Athol, 150 Mass. 426; 6 L. R. A. 342; 23 X. E. 311; Lamar, etc., Co. v. Lamar, 140 Mo. 145; 39 S. W. 768.
10 Philadelphia v. Hays, 93 Pa. St. 72.
11 Flick v. Mining Co., - Colo. App. - ; 60 Pac. 453; Swank v. Barnum, 63 Minn. 447; 65 X. W. 722.
12 Aarnes v. Windham, 137 Ala. 513; 34 So. 816; Vanderhoof v. Shell, 42 Or. 578; 72 Pae. 126.
13 Wunsch v. Boldt, 4 Tex. App. Civ. 76; 15 S. W. 193. Contra if the contractor has agreed to furnish an " inexhaustible" supply. Vincent v. Morrison, 58 Mo. App. 497.
14 Garner v. Fite, 93 Ala. 403; 9 So. 367.
15 McCourt v. Johns, 33 Or. 561; 53 Pae. 601.
16 McAlpine v. Reicheneker, 56 Kan. 100; 42 Pae. 339.