Whether the breach of a condition may be waived after such condition has been broken, and after the rights of the parties have become fixed, by reason of the fact that the contract has either been discharged in some other way, or has been fully performed except as to the covenants affected by such breach of condition, is a question upon which there has been a divergence of judicial opinion, depending to a large extent upon the nature of the contract in question. In such cases the adversary party does not act in reliance upon such waiver, since his rights have already been fixed, and since no further action on his part is called for by the terms of the contract. In non-negotiable contracts there is, therefore, a strong tendency to hold that under these circumstances waiver in the more limited sense is inoperative.1 If there is a consideration for the agreement not to take advantage of such breach of condition, the rights of the parties are, of course, fixed by such new contract.2 In the absence of consideration there is no way of upholding such waiver as the result of an estoppel, since the party against whom the condition has sought to be enforced, has not acted in reliance upon such waiver. Such waiver can not be upheld as the result of an election in the proper sense of the term, since in a case of this sort, the party in whose favor such condition is inserted has no right of election between two inconsistent rights, and it is a perversion of terms to say that he has a right of election between making use of such defense and in not making use of it. If the rights of the parties have been fixed in a contract of life insurance by the death of the insured, the act of the insurer in retaining the premium after the death of the insured, does not operate as a waiver,3 and if the insurer did not know of such breach before the rights of the parties were fixed by the death of the insured, waiver does not exist. If the act of the insured in furnishing proofs of loss is not regarded as an act to his prejudice, the conduct of the insurer, who has not learned of the breach of the condition until after the loss, in failing to take advantage of such breach until after the insured has furnished proofs of loss, does not amount to a waiver.4 It has, however, been held that the act of the insurer in demanding proof of loss may operate as a waiver if the insured furnishes proofs of loss in response to such demand, on the theory that such conduct will induce the insured to furnish proofs of loss by which he will be, to some extent, prejudiced if such conduct is not treated as a waiver.5 The conduct of the insurance company in proceeding to make an adjustment after loss, is said to amount to a waiver only if by such conduct on the part of the insurance company the insured is induced to incur expenses and the like in making such adjustment.6

10 McNamara v. Harrison, 81 Ia. 466, 46 N. W. 076.

See to the same effect, Brown v. Winchill, 3 Wash. 524, 28 Pac 1037.

Waiver by making partial payments is not waiver as to the final payment which was due after complete performance. Expanded Metal Fireproofing Go. v. Boyce, 233 Ill. 284, 84 N. E. 275.

11 Lunsford v. Wren, 64 W. Va. 458, 63 S. E. 308.

12 Michaelis v. Wolf, 136 Ill. 68, 26 N.

E. 384; Beharrell v. Quimby, 162 Mass. 571, 39 N. E. 407.

19 Louisville Foundry & Machine Co. v. Patterson (Ky.), 93 S. W. 22, 29 Ky. L. Rep. 349.

14 Pope v. King, 108 Md. 37, 16 L. R. A. (N.S.) 489, 69 Atl. 417.

15 Pope v. King, 108 Md. 37, 16 L. R. A. (N.S.) 489, 69 Atl. 417.

1 Huff v. Century Fire Ins. Co., 136 Ia. 464, 113 N. W. 1078; Allen v. Milwaukee Mechanics' Ins. Co., 106 Mich,

204, 64 N. W. 15; Thompson v. Travelers' Life Ins. Co., 13 N. D. 444, 101 N. W. 900; Gibson Electric Co. v. Liverpool & London & Globe Ins. Co., 159 N. Y. 418, 54 N. E. 23.

2 See Sec. 2457 et seq.

3 Thompson v. Travelers' Life Ins. Co., 13 N. D. 444, 101 N. W. 900.

4 Gibson Electric Co. v. Liverpool & London & Globe Ins. Co., 159 N. Y. 418, 54 N. E. 23.

5 Arkansas. Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 S. W. 719.

Iowa. Petroff v. Equity Fire Ins. Co., 183 Ia. 906, 167 N. W. 660.

Michigan. Veenstra v. Farmers' Mutual Fire Ins. Co., 195 Mich. 55, 161 N. W. 824.

Hew York. Kierman v. Dutchess County Mutual Ins. Co., 150 N. Y. 190, 44 N. E. 698.

Wisconsin. Reiner v. Dwelling House Ins. Co., 74 Wis. 89, 42 N. W. 208; Kidder v. Knights Templars' and Masons' Life Idemnity Co., 94 Wis. 538, 69 N. W. 364.

In many cases the courts insist in terms upon action by the insured in reliance upon the conduct of the insurer as an essential element of waiver. At the same time the acts which are done in reliance are, in many cases, so trifling in their character, as in the cases of furnishing proofs of loss or showing the value of the property, that the courts are evidently seeking any available pretext for applying the doctrine of waiver.7 The conduct of the insurer in requiring the insured to establish the value of the property after the loss, is held to amount to a waiver if the insured thereby incurs any expense or suffers other detriment.8 If the insurance company sells the property which is salvaged without knowledge of the facts, but retains the proceeds of such sale after it learns of the facts on which it could have relied as breach of condition, its conduct in retaining the proceeds of such sale operates as a waiver.9

While the weight of authority is in favor of the theory that waiver of certain rights arising out of breach of condition is possible, in the case of negotiable instruments, although such breach has already occurred, and the rights of the parties are already fixed,10 in some jurisdictions, on the other hand, it is held that defenses such as failure to make demand or to give notice of nonpayment, whereby the indorser is discharged, can not be waived after the rights of the parties have been fixed except by a new contract for which a new and additional consideration is requisite.11 The Negotiable Instruments Law provides: "Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied."12 This provision was clearly intended to adopt the majority rule and to make waiver of presentment, demand and protest after maturity final and conclusive, although without consideration.13

6 Huff v. Century Fire Ins. Co., 136 Ia. 464, 113 N. W. 1078; Allen v. Milwaukee Mechanics' Ins. Co., 106 Mich. 204, 64 N. W. 15.

7 Scottish Union and National Ins. Co. v. Colvard, 135 Ga. 188, 68 S. E. 1097; Devil's Lake First National Bank v. Manchester Fire Assurance Co., 64 Minn. 96, 66 N. W. 136.

8 Scottish Union & National Ins. Co. v. Colvard, 135 Ga. 188, 68 S. E. 1097.

9 Devil's Lake First National Bank v. Manchester Fire Assurance Co., 64 Minn. 90, GO N. W. 136.

10 See Sec. 2664.

11 Huntington v. Harvey, 4 Conn. 124; Sebree Deposit Bank v. Morel and, 96 Ky. 150, 29 L. R. A. 305, 28 S. W. 153.

12 Section 109, Negotiable Instruments Law.