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 a consideration exists for waiving damages, an express or implied agreement to that effect is valid. Breach as a ground of action for damages may be waived by the party not in default. The same principles apply to such waiver as apply to waiver of breach as a ground of discharge; but the facts upon which such principles operate are so different that different results are often obtained. If the party in default is induced by the acts or conduct of the adversary party before such performance, to perform in the manner subsequently complained of, such conduct of the party not in default will ordinarily estop him from claiming damages. Thus if the party not in default knows of the intended method of performance and acquiesces therein,1 he cannot subsequently recover damages for defective performance unless abatement for such defective performance has been an express or implied term of such acquiescence. Thus if A permits B without objection from A to make side connections for a steam-heating plant instead of top connections as provided for by contract, A cannot have deducted from the contract price the amount which it would cost to change such connections to make them conform to the contract.2 So no damages for extra expenses in unloading lumber on account of alleging bad piling can be recovered by one who had the option to do such piling himself if the cost to the see Burdine v. Burdine, 98 Va. 515; 81 Am. St. Rep. 741; 36 S. E. 992. adversary party was not increased and who made no objection to the manner of piling until after suit was begun.3 So an employe who has a contract with a railroad company for employment for life if able and willing to work at specified wages, and who has accepted employment for fifteen years at less wages, waives his right to recover the amount specified in the contract.4 So acceptance of materials tendered in performance of a building contract, subject to inspection by the owner,5 waives objection to such materials as being defective. To waive damages, however, such acceptance and acquiescence must be absolute and unqualified.6 Thus acceptance after breach of performance of a specified part of the contract does not waive the right to recover damages for the breach of the remainder.7
3 Rogers v. Female College, 64 Ark. 627; 39 L. R. A. 636; 44 S. W. 454.
1 Fitts v. Reinhart, 102 la. 311; 71 N. W. 225; Brighton v. Ry., 103
Mich. 420; 61 N. W. 550; Taylor v. Lumber Co., 103 Mich. 1; 61 N. W. 5; Goldsmith v. Hand, 26 O. S. 101; Laycoek v. Moon, 97 Wis. 59; 72 N. W. 372.
2 Fitts v. Reinhart, 102 la. 311; 71 N. W. 227.