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 operation of the general rules which govern the validity and effect of conditions is frequently modified by the desire of the courts to apply principles of waiver and to find that the party for whose benefit the condition was reserved has renounced it. The use of the term "waiver" has been severely criticized.1 It has been pointed out with perfect correctness that a great many of the general principles of waiver can be arranged under the headings of new contract, election and estoppel. The fact is, however, that the term "waiver" is used rather to indicate a result which arises from certain acts or omissions, rather than to indicate the acts or omissions which give rise to such result. In the old law the primary idea of "waive" was to throw away. It was, for example, used when a thief threw away goods in his flight. He was said to waive such goods, and the goods were said to be waifs.2 This idea has always persisted in our law, and the term waiver is still used of the voluntary renunciation of a right which the party entitled thereto might have asserted if it had not been for such renunciation.3 Because of the fact that a right may be renounced by means of a new contract, it has sometimes been said that waiver is equivalent to a new contract as distinguished from estoppel.4 Since waiver is one of the consequences of estoppel, it has been said, on the other hand, that waiver is equivalent to estoppel.5 Since the effect of waiver is to prevent the party in whose favor a condition is inserted from taking advantage of breach thereof,6 waiver has been said to be equivalent to performance.7 While, for the purposes of the particular case the party who has broken the condition may be as well off if he can show that the condition is waived as he is if he can show that the condition is performed, the two ideas are essentially different. Under an allegation of performance of con. ditions, waiver of conditions can not be shown, in most jurisdictions, to overcome the effect of a breach thereof.8 Some jurisdictions, however, treat waiver as so nearly equivalent to performance that waiver may be shown in evidence under a plea of performance.9
12 MacKnight Flintic Stone Co. v.
New York, 160 N. Y. 72, 54 N. E. 661.
13 Shine v. Hagemeisfter Realty Co.,
- Wis. -, 172 N. W. 750.
14 Shine v. Hagemeister Realty Co.,
- Wis. -, 172 N. W. 750.
15 Mallard v. Moody, 105 Ga. 400, 31 S. E. 45.
16 O'Brien v. Construction Co., 107 Fed. 338; State v. Cuyahoga County, 12 Ohio C. D. 328, 21 Ohio C. C. 780.
17 Norfolk, etc., Co. v. Mills, 91 Va, 613, 22 S. E. 556.
1 See Waiver Distributed, by John S. Ewart.
2 1 Black. Com. 297.
3 United States. United Firemen's Ins. Co. v. Thomas, 82 Fed. 406, 47 L. R. A. 450.
Colorado. National Mutual Fire Ins. Co. v. Duncan, 44 Colo. 472, 98 Pac. 634 [sub nomine, Duncan v. National Mutual Fire Ins. Co., 20 L. R. A. (N.S.) 340].
Iowa. Norton v. Catholic Order of Foresters, 138 Ia. 464, 24 L. R. A. (N.S.) 1030, 114 N. W. 893.
Maine. Holt v. New England TeL & Tel. Co., 110 Me. 10, 85 Atl. 159.
Oklahoma. American Cent. Ins. Co. v. Sinclair, - Okla. -, 160 Pac 60; Ross v. Sanderson, - Okla. -, L. R. A. 1917C, 879, 162 Pac. 709.
South Carolina. Griffith v. Newell, 69 S. Car. 300, 48 S. E. 259.
Wisconsin. Frazier v. Aetna Life Ins. Co., 114 Wis. 510, 90 N. W. 476; Voss v. Northwestern National Life Ins. Co., 137 Wis. 492, 118 N. W. 212.
4 Kiernan v. Dutchess County Mutual Ins. Co., 150 N. Y. 190, 44 N. E. 698.
5 Phenix lns. Co. v. drove. 215 III. 299, 25 L. R. A. (N.S.) 1, 74 N. E. 141,
"The doctrine of waiver, as applied to such a case as this, is that of estoppel in pais. There is no substantial distinction between the two, and the terms are used interchangeably, a waiver being only another name for an estoppel." Phenix Ins. Co. v. Grove, 215 Ill. 299, 25 L. R. A. (N.S.) 1, 74 N. E. 141.
• See Sec. 2666.
7 Barton v. Gray, 57 Mich. 622.
8 McCoy v. Iowa State Ins. Co., 107 Ia. 80, 77 N. W. 629; Goodhue v. Hartford Fire Ins. Co., 175 Mass. 187, 55 N. E. 1039; Wolff v. German-American Ins. Co., - Okla. -, 159 Pac. 480; State Mut. Ins. Co. v. Green, - Okla. -, 166 Pac. 105; Bruce v. Phoenix Ins. Co., 24 Or. 486, 34 Pac. 16.
9 St. Louie Ins. Co. v. Kyle, 11 Mo. 278; Zielke v. London Assurance Corporation, 64 Wis. 442; Foster v. Fidelity & Casualty Co., 99 Wis. 447, 40 L. R. A. 833, 75 N. W. 69.
"The learned counsel of the appellant contends that such evidence being introduced to prove a waiver of any proofs of loss, and an estoppel of the company to claim the same or to insist upon the performance of such condition, such waiver and estoppel should have been pleaded. We do not understand that such evidence tended merely to prove a complete waiver of any proofs of loss, but rather to prove the making of the proofs of loss required by the policy, in such manner and form as required by the company at the time, as a compliance with the condition of the policy in that respect, and if it showed any waiver it was as to the mere form of the written proofs and their authentication. The long list of the articles destroyed, and showing the value of each, contained all the substance of such a list authenticated and made in the form required by the policy, and the personal examination of the plaintiff on oath was provided for by the policy, and was required by the company in addition to the proofs furnished by such list. The question is not so much of a waiver of this condition of the policy as of a substantial compliance with such condition to the satisfaction of the company. But if this is not the true theory of the legal effect of such evidence, the plaintiff could not anticipate that the defendant would deny the allegation of the complaint that due proofs of loss were furnished. In either view the waiver or estoppel" was not required to be pleaded by the plaintiff." Zielke v. London Assurance Corporation, 64 Wis. 442.