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.
The justice of the rule that acceptance after breach, even though a waiver of the right to treat such breach as discharge,1 is not a waiver of a right of action for damages is apparent when it is considered that the party not in default is often constrained by his necessities to take what he can get under his contract when he can get it.2 Such conduct does not and should not operate as a waiver of the right of action for damages.3 Thus A sold timber to B and by the same contract gave to B the right to use A's sawmill. B made contracts to sell and deliver timber to others. A subsequently took possession of the mill and refused to surrender it to B. In order to fill his contracts, B furnished timber to the mill and received lumber therefor. Such conduct did not waive B's right to sue for breach of contract.4 So if defective machinery is erected under a contract for first-class machinery and the vendee can do noth-ing better than accept it and use it, he does not waive his claim for damages.5 So if A has engaged a theatrical company to give a performance in his theatre, has sold tickets and invested the proceeds in advertising, his acceptance of the performance does not waive his right to claim damages.6 Where a contract to pay extra compensation to induce performance waives damages for the breach which induced such promise for extra compensation is a question upon which there is a conflict of authority. Some courts hold that such a contract impliedly bars a right of action on the original contract ;7 others, that it does not as a matter of law.8 So as it is the duty of the party not in default to take proper steps to mitigate damages, such conduct does not amount to a waiver of damages. Thus A had agreed to refine B's sugar. A was unable to perform and contracted with X to refine it, B's conduct in acquiescing in such agreement is not a waiver of a claim for damages.9
1 Flannery v. Rohrmayer, 46 Conn. 558; 33 Am. Rep. 36; Cannon v.Hunt, 116 Ga. 452; 42 S. E. 734; Underwood v. Wolf, 131 111. 425; 19 Am. St. Rep. 40; 23 N. E. 598; Brady v. Cassidy, 145 N. Y. 171; 39 N. E. 814.
2 Flannery v. Rohrmayer, 46 Conn. 558; 33 Am. Rep. 36.
3 Cannon v. Hunt, 116 Ga. 452; 42 S. E. 734.
4 Flannery v. Rohrmayer, 46 Conn. 558; 33 Am. Rep. 36.
5 Bryson v. McCone, 121 Cal. 153; 53 Pac. 637.
6 Johnson v. Henry, 127 Mich. 548; 86 N. W. 1027.
7 Redlando, etc., Association v. Gorman, 161 Mo. 203; 54 L. B. A. 718; 61 S. W. 820.
8 Underwood v. Wolf, 131 111. 425; 19 Am. St. Rep. 40; 23 N. E. 598.
9 Morse v. Moore, 83 Me. 473; 23 Am. St. Rep. 783; 13 L. R. A. 224; 22 Atl. 362.
10 Frith v. Hollan, 133 Ala. 583; 91 Am. St. Rep. 54; 32 So. 494.
11 Brick used in building. Wisconsin Red Pressed Brick Co. v. Hood, 67 Minn. 329; 64 Am. St. Rep. 418; 69 N. W. 1091.
1 Brady v. Cassidy, 145 N. Y. 171; 39 N. E. 814.
2 Garfield, etc., Co. v. R. E., 166 Mass. 119; 44 N. E. 119.
3 Bucklin v. Davidson, 155 Pa. St. 362; 26 Atl. 643.
4 Bucklin v. Davidson, 155 Pa. St. 362; 26 Atl. 643.
5 Payne v. Lumber Co., 110 La. 750; 34 So. 763.
6 Charley v. Potthoff, 118 Wis. 258; 95 N. W. 124.
7 Where A agreed to furnish B such silver plated ware as he should order for the season of 1879 and 147
A delivered some and received payment and refused to deliver the rest except at a higher price and B agreed to pay such price, B cannot sue A for breach of the original contract. Rogers v. Rogers, 139 Mass. 440; 1 N. E. 122.
8 Endriss v. Ice Co., 49 Mich. 279. (Such question was here held to be one of fact to be passed upon by the jury.)
9 Avery v. Sugar Co., Ill La. 891; 35 So. 967.