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.
In many cases the courts succeed in avoiding the effect of breach of condition in accordance with the terms of the contract, by holding that the party who has broken such condition is excused from performance or that breach of such condition has been waived. To a large extent these terms have been used interchangeably. As far as they can be distinguished, "waiver" is used where the right to take advantage of the breach of condition is intentionally renounced by the adversary party,1 and "excuse" is used of cases in which effect is denied to the breach of condition, either because of extrinsic facts, or because of conduct of the adversary party which does not show any intention on his part of renouncing his right to take advantage of such breach, but which the law, nevertheless, regards as preventing him from taking advantage thereof.2 In many of the cases in which the doctrine of excuse is involved, the circumstances which lead up to the breach are such that the court can say properly that the breach was not one which was fairly contemplated by the parties when they entered into the original contract. Many forms of this kind of excuse have already been given in discussing the application and effect of various provisions for conditions.3 In some of the cases in which an excuse for breach is offered, no element of waiver that is of intention on the part of the party for whose benefit such condition was reserved to renounce the benefit of such condition, exists. The refusal of an insured to submit to an examination as to the amount and causes of the loss, is excused by the fact that when such examination was demanded his attorney was temporarily absent, and he refused to submit to such examination in the absence of his attorney.4 An injunction by which an insurance society is restrained from suspending a member for failure to pay his dues until the determination of litigation involving the power of such insurance order to increase its assessments, does not prevent his failure to pay his dues from operating as a breach of condition if it is finally adjudged that the insurance order had power to increase such assessments.5 Many of the excuses of this type arise in building and construction contracts, and these will be discussed in the following sections.6 The excuses for breach of conditions in contracts of insurance are usually classed under the general heading of waiver,7 although in thus classing them the term is frequently carried far beyond its original meaning as it is made to cover the consequences of estoppel, and to prevent the insurance company from taking advantage of breaches of condition of which in all probability it was intended to take advantage wherever possible.8
4 United States. El Paso Reduction Co. v. Hartford F. Ins. Co., 121 Fed. 937; Schwarzschild & S. Co. v. Phoenix Ins. Co., 124 Fed. 52.
California. Mangrum v. Law Union & Rock Ins. Co., 172 Cal 497, L. R. A. 1916F, 440, 157 Pac. 239.
Iowa. Parsons v. Northwestern Nat. Ins. Co., 133 Ia. 532, 110 N. W. 907.
Michigan. Webb v. Granite State F. Ins. Co., 164 Mich. 139, 120 N. W. 19.
Nebraska. Schmidt v. Williamsburg City Fire Ins. Co., 95 Neb. 43, 51 L. R. A. (N.S.) 261, 144 N W. 1044.
New Jersey. Davidson v. German Ins. Co., 74 N. J. L. 487, 12 Am. & Eng. Ann. Cas. 1065, 13 L. R. A. (N.S.) 884, 65 Atl. 996.
Ohio. Phoenix Mut. F. Ins Co. v. Brecheisen, 50 O. S. 542, 35 N. £. 53.
South Carolina. Norris v. Hartford F. Ins. Co., 55 S. Car. 450, 74 Am. St. Rep. 765, 33 S. E. 566.
Wisconsin. Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N. W. 755
5 Peoria M. & F. Ins. Co. v. Botto. 17 I1L 516 (express provision for refunding unearned premium if the insurance company should elect to cancel the policy); Continental Ins. Co. v. Daniel, (Ky ), 78 S. W. 866, 25 Ky. L. Rep. 1501; Tisdell v. New Hampshire F Ins. Co., 155 N. Y. 163, 40 L. R. A. 765, 49 N. E. 664; Taylor v. Insurance Co., 25 Okla. 92, 138 Am. St. Rep. 906, 105 Pac. 354.
6 Teeter v. Horner Military School, 165 N. Car. 564, 51 L. R. A. (N.S.) 975, 81 S. E. 767.
1 See Sec. 2666.
2 See Sec. 2653 et eeq. 3 See Sec. 2594 et seq.
4 Gordon v. St. Paul Fire & Marine Insurance Co., 197 Mich. 226, L. E. A. 1918E, 402, 163 N. W. 956.
5 Evans v. Supreme Council, 223 N. Y. 497, 1A.L.R. 163, 120 N, E. 93.
6 See Sec. 2663 et seq.
7 See Sec. 2663 et seq.