If the adversary party acts in reliance upon such waiver and alters his position so that he will be prejudiced if the party who is not in default is allowed to alter his position and to treat the contract as discharged, such conduct on the part of the party who was originally in default prevents the party who is not in default from retracting such waiver.1 If the seller is to deliver articles as the buyer may order and in such quantities as he may designate, it is held that his delivery of a less quantity than is ordered and the acceptance thereof by the buyer will prevent the buyer from treating such deficiency as a discharge, unless the buyer demands further performance in time to enable the seller to comply with such demand.2 If a shipper has agreed to furnish articles for transportation, his failure to furnish the quantity which is required by the contract is waived by the conduct of the carrier in failing to furnish sufficient cars to transport the quantity of articles furnished by the shipper and in claiming that the carrier was unable to furnish more cars.3 If the vendor breaks the contract and the vendee insists on his continuing the performance, the vendee can not subsequently elect to treat such breach as a discharge.4

N. W. 1014; Gates v. Detroit & Mackinac Ry., 147 Mich. 523, 111 N. W. 101.

Mississippi Klein v. Buck, 73 Miss. 133, 18 So. 891.

Nebraska. Izard v. Kimmel, 26 Neb. 61, 41 N. W. 1068; Mundt v. Simp-kins, 81 Neb. 1, 115 N. W. 325.

New York. Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 21 L. R. A. (N.S.) 864, 88 N. E. 24.

North Dakota. Plummer v. Kelly, 7 N. D. 88, 73 N. W. 70.

Washington, Garrison v. Newton, 06 Wash. 284, 4 A. L. R. 804, 165 Pac. 90.

Wisconsin, Tickler v. Andrae Mfg. Co., 95 Wis. 352, 70 N. W. 292; Lay-cock v. Moon, 97 Wis. 59, 72 N. W. 372; Woodman v. Blue Grass Land Co., 125 Wis. 489, 103 N. W. 236, 104 N. W. 920; Milwaukee Boston Store v. Katz, 153 Wis. 492, 140 N. W. 1038.

1 W. F. Main Co. v. Field, 144 N. Car. 307, 119 Am. St. Rep. 956, 11 L. R. A. (N.S.) 245, 56 S. E. 943; Milwaukee Boston Store v. Katz, 153 Wis. 492, 140 N. W. 1038.

2W. F. Main Co. v. Field, 144 N. Car. 307, 119 Am. St. Rep. 956, 11 L.

R. A. (N.S.) 245, 56 S. E. 943; Milwaukee Boston Store v. Katz, 153 Wis. 492, 140 N. W. 1038.

3 Coleman v. Bank, 115 Ala. 307, 22 So. 84; Corbett v. Schulte, 119 Mich. 249, 77 N. W. 947; McCourt v. Johns, 33 Or. 561, 53 Pac. 601.

4 Bennett v. Hickey, 112 Mich. 370, 70 N. W. 900.

5 Jackson v. Porter Land & Water Co., 151 Cal. 32, 90 Pac. 122; International Harvester Co. v. Brown, 182 Ky. 435, 206 S. W. 622.

See Sec. 3050.

1 1llinois. Hills v. McMunn, 232 111. 488, 83 N. E. 963.

Kentucky. Louisville & Nashville Ry. v. Mason & Hoge Co. (Ky.), 104 S. W. 975, 31 Ky. L. Rep. 1220.

Michigan. Gates v. Detroit & Mackinac Ry. Co., 147 Mich. 523, 111 N. W. 101.

New Jersey. Sun Dredging & Construction Co. v. Ottens, 84 N. J. L. 740, 87 Atl. 1003.

New York. Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 21 L. R. A. (N.S.) 864, 88 N. E. 24.

If the party who was originally in default has not altered his position in reliance upon the apparent intention of the party who is not in default, to treat the contract as in effect, it is held in some jurisdictions that such conduct on the part of the party who is not in default does not operate as a final waiver; and that, under such circumstances, the party who is not in default may alter his position and treat the contract as discharged, as long as the adversary party has not altered his position.5 The fact that one of the parties has waived a provision as to the time of performance, does not make such waiver operative for the entire period of the contract; but on reasonable notice to the adversary party, the party who is not in default may insist on performance in accordance with the terms of the contract, in default of which he may treat the contract as discharged.6 If the party who is not in default makes a payment voluntarily with knowledge of the breach, such waiver does not compel him to continue performance thereafter;7 and if such payment is voluntarily repaid on demand, the party who was originally in default can not treat the refusal of the adversary party to continue performance as breach.8

In other jurisdictions it seems to be held that the deliberate declaration by the party who is not in default of his intention to treat the contract as in effect, in spite of the breach on the part of the adversary party, is a finality; and that the party who has made such declaration can not alter his position, although the party who was in default has not acted in reliance thereon.9

2Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 21 L. R. A. (N.S.) 864, 88 N. E. 24.

3 Gates v. Detroit & Mackinac Ry. Co., 147 Mich. 623, 111 N. W. 101.

4 Pratt v. S. Freeman & Sons Mfg. Co., 115 Wis. 648, 92 N. W. 368.

5 Sickelsteel v. Edmonds, 158 Wis. 122, 147 N. W. 1024.

6Panoutaoa v. Raymond Hadley Corporation [19171, 1 K. B. 767.

7 Sickelsteel v. Edmondg, 158 Wis. 122, 147 N. W. 1024.

8 Sickelsteel v. Edmonds, 158 Wis. 122, 147 N. W. 1024.

While omission on the part of the party who is in default may not of itself amount to such action in reliance upon the apparent intention of the party who is not in default to treat such contract as in effect, that the party who is not in default will be precluded from altering his position, the party who is not in default must at least give reasonable notice of his change of intention, so as to enable the adversary party to perform if he wishes.10 If the parties to a contract have entered into negotiations for arbitration of a dispute as to the performance of a given covenant, failure to perform such covenant can not be treated as a breach without giving a reasonable notice to the adversary party that performance will be demanded in accordance with the terms of the contract and that such question will not be submitted to arbitration.11 If one of the parties to the contract has waived the provisions thereof as to the time of performance, he can not alter his position without giving a reasonable notice to the adversary party.12 If an employe for an indefinite period is laid off for a month without pay, and he acquiesces therein and treats the contract as in force, he can not subsequently treat such breach as a discharge and recover on quantum meruit.13