While the general principles of waiver, so-called, apply to waiver of breach as the basis of a right of action to recover damages, as well as to waiver of breach as a ground for treating the contract as discharged at the election of the party who is not in default, the facts which are involved in waiver of a right of action for damages are so different from those which are involved in waiver of breach as a ground for treating the contract as discharged that different results are frequently reached in two classes of cases.1

Since a right of action may be discharged by a release under seal,2 such a release prevents the party who has given it from recovering damages which he has thus released.

If the party who is in default claims that damages have been waived by a subsequent simple contract between the parties, the same question is presented which is presented in all cases of modification by a new contract not under seal.3 The new contract must possess the elements of a valid simple contract;4 and this, in most jurisdictions, includes consideration.5 A subsequent promise by the party in default to perform the original contract, and the agreement of the party who is not in default to accept such performance in spite of delay, is a promise by the party in default to do what he is bound to do, although at a later time; and such promise is accordingly without consideration for an agreement to waive damages arising out of the breach of the original contract.6 The fact that the buyer has agreed, after the seller is in default, to accept such deliveries later, does not discharge his right of action for such delay in making delivery.7

6 Swartzman v. Babcock, 218 Mass. 834, 106 N. E. 1022.

1 See Sec. 3037 et seq. 2 See Sec. 2447 et seq.

3 See Sec. 2457 et seq.

4 See ch. V et seq., and also Sec. 2457 et seq.

5 Charleston Lumber Co. v. Friedman, 64 W. Va. 151, 61 S. E. 815.

See Sec. 2461 et seq.

6 United States. Frankfurt-Barnett

Co. v. William Prym Co., 237 Fed. 21, L. R. A. 1918A, 602.

Illinois. Goldsborough v. Gable, 110 111. 269, 15 L. R. A. 2D4, 29 N. E. 722.

Iowa. Runkle v. Kettering, 127 la. 6, 102 N. W. 142.

Michigan. Widiman v. Brown, 83 Mich. 241, 47 N. W. 231.

New York. Vanderbilt v. Schreyer, 91 N. Y. 392; Carpenter v. Taylor, 164 N. Y. 171, 58 N, E. 53.

If the elements of a valid contract are present, and the new contract shows the intention of the parties to discharge a right of action for damages which is based on the breach of the prior contract, full effect is given to such provision.8

If a new contract does not provide in express terms, either for a discharge of the right of action for damages which arose upon the breach of the former contract, or for the continued existence thereof, the question of the presumed intention of the parties arises; and on this there is a conflict of authority. In some jurisdictions it is held that, if there is no provision with reference to the right of action for damages for breach of the prior contract, such right of action is discharged by the new contract.9 If the buyer claims that goods are defective and that they do not comply with the warranty, his conduct in subsequently exchanging such goods for new ones furnished by the seller, and giving new notes for the balance due, is held to operate as a waiver of damages on the original contract.10 If the buyer claims that the goods are defective, but subsequently he accepts additional goods and pays for the goods furnished under the original offer, such conduct operates as a waiver of his right of action for damages.11 If A and B have entered into a contract by which A is to advance money to enable B to operate a manufacturing business, and A fails to advance such money, B's contract with A to close his manufacturing plant for a certain period of time prevents him from claiming damages by reason of A's breach in causing such plant to be closed during the time covered by such contract to close it.12 The danger that this inference may be drawn if a new contract is made is said to justify the party who is not in default in refusing to mitigate damages by entering into a new contract with the adversary party on the same subject-matter.13

7 Frankfurt-Barnett Co. v. William Prym Co., 237 Fed. 21, L. R. A. 1918A, 602.

8 England. Davis v. Street, 1 Car. & P. 18.

United States. Badger Mfg. Co. v. United States, 40 Ct. CI. 538.

Arkansas. Marker v. East Arkansas Lumber Co., 135 Ark. 435, 205 S. W. 818.

Florida. Dickerson v. Lankford, 69 Fla. 127, 67 So. 807.

Indiana. Ralya v. Atkins, 157 Ind. 331, 61 N. E. 726.

Kansas. Muenzenmayer v. Hood, 07 Kan. 565, 155 Pac. 917.

Michigan. Goebel v. Linn, 47 Mich. 489, 41 Am. Rep. 723, 11 N. W. 284.

Minnesota. Dieudonne v. Arco Co., 139 Minn. 441, 166 N. W. 1067.

North Dakota. Chesley v. Soo Lignite Coal Co., 10 N. D. 18, 121 N. W. 73.

Rhode Island. Swarts v. Narragan-sett Electric Lighting Co., 26 R. I. 388, 59 Atl. 77 [rehearing denied, 26 R. I. 436, 59 Atl 111].

Vermont. Agel v. F. R. Patch Mfg. Co, 77 Vt 13, 58 Atl. 792.

Washington. Dietrich v. Seattle, 05 Wash 654, 164 Pac. 251.

9 Englan. Davis v. Street, 1 Car. & P. 18.

Arkansas. Marker v. East Arkansas Lumber Co., 135 Ark. 435, 205 S. W. 818.

Florida. Dickerson v. Lankford, 69 Fla. 127, 67 So. 807.

Indiana. Ralya v. Atkins, 157 Ind. 331, 61 N. E. 726.

Kansas. Muenzenmayer v. Hood, 97 Kan. 565, 155 Pac. 917.

Minnesota. Dieudonne v. Arco Co., 139 Minn. 441, 166 N. W. 1067.

North Dakota. Chesley v. Soo Lignite Coal Co., 19 N. D. 18, 121 N. W. 73.

Rhode Island. Swarts v. Narragan-sett Electric Lighting Co., 26 R. I. 388, 59 Atl. 77 [rehearing denied, 26 R. I. 436, 59 Atl. 111].

10 Muenzenmayer v. Hood, 97 Kan. 565, 155 Pac. 917.

In other jurisdictions it is held that a new contract does not discharge a right of action for breach of a prior contract unless the terms of the new contract show affirmatively that the parties intended to discharge such right of action.14 A contract by which the property owner agrees to take possession of a building and to waive damages for failure to complete the building on time, does not necessarily waive other claims.15

If the original contract between the parties is broken and a new contract is thereupon made between the same parties, the question of the effect of such new contract as a waiver of damages arising because of breach of the original contract is a special form of the problem which has just been discussed; and in this case, too, there is a conflict of authority. In some jurisdictions it is said that such new contract operates as a discharge of the right of action for damages under the original contract.16 In other jurisdictions it is held that such new contract does not operate as a discharge of the original contract, at least as a matter of law.17 If the buyer refuses to perform a contract of sale, and the seller sells the goods to him at a reduced price as a means of mitigating damages, such new contract does not operate as a waiver of damages for breach of the original contract.18

11 Dieudonne v. Arco Co., 139 Minn. 441, 106 N. W. 1067.

12 Marker v. East Arkansas Lumber Co., 135 Ark. 435, 205 S. W. 818.

13 Krebs Hop Co. v. Livesley, 59 Or. 674, 114 Pac. 944, 118 Pac. 165.

14 Frankfurt-Barnett Co. v. William Prym Co., 237 Fed. 21, L. R. A. 1918A, 602; Brent v. Head, 138 la. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106; Alabama. Oil & Pipe Line Co. v. Sun Co., 09 Tex. 606, 92 S. W. 253.

15 Brent v. Head, 138 la. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106.

16 Rogers v. Rogers, 139 Mass. 440, 1 N. E. 122; Goebel v. Linn, 47 Mich. 489, 41 Am. Rep. 723, 11 N. W. 284; Agel v. F. R. Patch Mfg. Co., 77 Vt. 13, 58 Atl. 792.

Where A agreed to furnish B such silver-plated ware as he should order for the season of 1879 and 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 can not sue A for breach of the original contract. Rogers v. Rogers, 139 Mass. 440, 1 N. E. 122.