Since intention to waive breach is essential the mere fact of possession of the property tendered by the adversary party in performance of the contract, is not conclusively an acceptance so as to waive breach.1 Thus if A, who has agreed to give certain securities to B to secure a debt of B's, tenders B a note in place of such security, and on B's refusal to take it A throws it on the table in front of B and goes away without it, such facts do not constitute an acceptance by B.2 The fact that the promisee takes possession of the property tendered in performance, for the purpose of testing it, and seeing whether it complies with the terms of the contract or not, does not amount to an acceptance.3 Thus, if A digs a well for B, agreeing that it shall furnish water for certain purposes, B's act in using such well to test its capacity does not amount to an acceptance thereof so as to waive breach.4 If, however, certain defects are apparent, and known to the promisee, his act in making use of part of such property amounts to an acceptance of the entire lot offered and such defects are thereby waived.5