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 one party to the contract refuses to accept performance of any kind, and thereby leads the adversary party to refrain from tendering performance, such refusal waives such failure to perform.1 Thus a variance between a lease contracted for, and the one offered, is waived by the lessee's refusal to accept any lease at all.2 A refusal to perform on the ground of a specific breach assigned by the party so refusing as a ground for such refusal, is a waiver of other breaches which are known to him or brought to his notice.3 A refusal to perform a contract to forward cattle, on the ground that the promisor did not have a sufficient number of cars, prevents the carrier from subsequently urging the objection that in that state it was illegal to forward on Sunday.4 So a refusal of a tender of the purchase price made by an assignee of the vendee on the ground that the amount is insufficient waives breach of a provision forbidding assignment.5 So a refusal to accept goods tendered in performance of a contract of sale upon the sole ground that such delivery is too late, waives the objection that the entire amount of goods purchased must be delivered in one lot.6 So if a vendor stops delivering goods upon the sole ground that he has fully performed his part of the contract, he waives breach on the part of vendee by his failure to pay for prior installments when due.7 A provision in an insurance policy required proof of loss to be submitted in a certain time is waived by the company's denial of liability under the policy,8 as on the ground of suicide.9 Refusal to pay an insurance policy on the ground that the insured has no title to the premises, waives objections which might have been urged against the proof of loss.10 A policy on property in Porto Rico excepted loss during invasion or rebellion unless satisfactory proof was made that it was due to some cause other than such invasion or rebellion. The duty of producing such proof which rests upon the insured is waived by a notice given by the insurer without demanding proof, that it will not pay the loss because due to one of the excepted causes.11 A refusal to perform on the ground that the contract is for some reason unenforceable, as because of the Statute of Frauds,12 waives objections to the performance actually tendered.
3 Aultman v. Martin, 49 Xeb. 103; 68 N. W. 340.
4 Clark v. Bache, 186 Pa. St. 343; 40 Atl. 484.
5 Millar v. Smith, 28 Tex. Civ. A pp. 386; 67 S. W. 429.
6 Kuhn v. McKay, 7 Wyom. 42; 49 Pac. 473; 51 Pac. 205.
1 Bank v. Trading Co. (1894), A. C. 266; Davis v. Granite Co., 75 Vt. 286; 54 Atl. 1084.
2 Freeland v. Ritz, 154 Mass. 257; 26 Am. St. Rep. 244; 12 L. R. A. 561; 28 N. E. 226.
3 Monson v. Bragdon, 159 111. 61; 42 N. E. 383; Robert Mitchell Furniture Co. v. Monarch (Ky.), 39 S. W. 823; Goddard v. Morrissey, 172 Mass. 594; 53 X. E. 207; Marlborough Gaslight Co. v. Neal, 166 Mass. 217; 44 N. E. 139; Hixson Map Co. v. Post Co. (Xeb.). 98 N. W. 872; Wright v. Land Co., 100 Wis. 269; 75 X. W. 1000.
4 Ohio, etc., Ry. v. McCarthy. 96 U. S. 258.
5 Cheney v. Billy, 74 Fed. 52; 20 C. C. A. 291.