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 party not in default leads the other to believe that he will not insist upon strict performance, or if he requests such breach,1 or if he makes strict performance impossible,2 he cannot subsequently recover damages for departure from strict performance caused by such representations or conduct. Thus one who accepts an unfinished boat before the time for its completion cannot recover a fixed amount per day agreed upon as damages for delay in completion.3 If the person for whom work is done inspects it as it progresses and accepts it after such inspection, as full performance of the contract, he cannot thereafter recover damages for alleged breach which such inspection could have disclosed.4 The same principle applies where the contract provides for inspection by the architect and he inspects and accepts the work.5 So if a contractor acquiesces in rejection of material by the inspector appointed by the adversary party and procures other material, he cannot claim damages for such delay.6
3 Taylor v. Lumber Co., 103 Mich. 1; 61 N. W. 5.
4 Brighton v. Ry., 103 Mich. 420; 61 N. W. 550.
5 Laycock v. Moon, 97 Wis. 59; 72 N. W. 372.
6 Brownell Improvement Co. v. Critehfield. 197 111. 61; 64 N. E. 332; affirming, 96 111. A pp. 84.
7 Sullivan v. McMillan. 26 Fla. 543; 8 So. 450.
1 District of Columbia v. Iron
Works, 181 U. S. 453; Young v. Glass Co., 187 111. 626; 58 X. E. 605.
2 Vandegrift v. Engineering Co., 161 N. Y. 435; 48 L. R. A. 685; 55 N. E. 941.
3 Vandegrift v. Engineering Co., 161 N. Y. 435; 48 L. R. A. 685; 55 N. E. 941.
4 Parker v. Palmer. 4 Barn. & Ald. 387; Beverly v. Coke Co., 6 Ad. & El. 829; United States v. Walsh,