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 no consideration for waiving damages exists and the defective performance has not been induced by the previous acts or representations of the party not in default, the question remains whether the mere fact of accepting defective performance waives the right to maintain an action for damages. Such acceptance waives the right to treat such breach as a discharge of contract liability, on principles of estoppel, but from the nature of the case no such reasons exist for treating such acceptance as a waiver of the right to maintain an action for damages and the weight of authority is that it is not such a waiver.1 Payment in full with knowledge of defects,2 or taking possession of a building,3 does not of itself waive a right of action for damages. Such conduct may, however, be evidence of such waiver.4 Permitting5 or requiring6 contractors to complete a building after the time limited for performance, or accepting goods delivered after the time fixed for performance,7 does not waive damages for such delay. So accepting property delivered after the time fixed for testing has expired does not waive a right of action for damages for breach of warranty.8 Accepting chat tels offered under a contract of sale with warranty, either express9 or implied,10 does not waive the right of action for damages if the chattels do not correspond to the warranty. If no implied warranty exists, no liability remains after acceptance.11
108 Fed. 502; Carleton v. Jenk-. SO Fed. 937; Hirshhorn v. Stewart. 49 la. 418; Pierson v. Crooks, 115 X. Y. 539; 12 Am. St. Rep. 831: 22 N. E. 349: Studer v. Bleistein. 115 N. Y. 316: 5 L. R. A. 702; 22 N. E. 243; Coplay Iron Co. v. Pope, 108 N. Y. 232: 15 X. E. 335; Norton v. Dreyfuss, 106 N. Y. 90; 12 N. E. 428; Dounce v. Dow. 64 N. Y. 411; Gurney v. Atlantic & G. W. R. Co.. 58 N. Y. 358; Dounce v. Dow, 57 N. Y. 16.
5 Whitehead v. Brothers' Lodge (Ky.), 62 S. W. 873; Siebert v. Roth. 118 Wis. 250; 95 X. W. 118.
6 Montgomery v. New York, 151 N. Y. 249: 45 N. E. 550.
1 Industrial Works v. Mitchell, 114 Mich. 29: 72 N. W. 25.
2 Monahan v. Fitzgerald. 164 III. 525; 45 N. E. 1013.
3 Spink v. Mueller. 77 Mo. App. 85.
4 Utah Lumber Co. v. James. 25 Utah 434: 71 Pac. 986.