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 order that the promisee may be held to waive a breach of the contract, he must know of the fact which constitutes such breach.1 The knowledge which is required is more than mere suspicion.2 The conduct of the party who is not in default, in recognizing the continued existence of the contract in reliance upon the assurance of the adversary party that such adversary party will eventually perform the contract, is not a definite and final waiver of such breach;3 but it is at most a waiver as to the time for performance, and not as to the ultimate performance itself.
9 Arkansas. Stewart v. Simon, 111 Ark. 358, 163 S. W. 1135.
Florida. Hyer v. York. Mfg. Co., 58 Fla. 283, 50 So. 485; Franklin Phosphate Co. v. International Harvester Co., 62 Fla. 185, 57 So. 206; Roess Lumber Co. v. State Exchange Bank, 68 Fla. 324, L. R. A. 1918E, 297, 67 So. 188.
Georgia. Atlanta Consolidated Bottling Co. v. Hutchinson, 109 Ga. 550, 35 S. E. 124.
Idaho. Smith v. Smith, 4 Ida. 1, 35 Pac. 697.
Indiana. McCormick Harvesting Machine Co. v. Yeoman, 26 Ind. App. 415, 59 N. E. 1069.
10 Prentiss v. Lyons, 105 La. 382, 29 So. 944; St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89, 78 N. E. 701; Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867; Walker v. McMurchie, 61 Wash. 489, 112 Pac. 500.
11 St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89, 78 N. E. 701.
12 Prentiss v. Lyons, 105 La. 382, 29 So. 944; Taylor v. Goelet, 208 N. Y. 253, 101 N. E. 867; Walker v. McMurchie, 61 Wash. 489, 112 Pac. 500.
13 Forbes v. Appleyard, 181 Mass. 354, 63 N. E. 894.
The act of the buyer in taking possession of the goods does not waive his right to treat the contract as discharged because of latent defects unknown to him, which prevented the goods from complying with the terms of the contract of sale.4 If A has employed B to make certain plans, A's payment of part of the purchase price before he has an opportunity to examine the plans does not waive B's breach in making plans which were not in accordance with the contract.5 The act of an insured in waiving one ground of forfeiture does not affect the waiver of another ground of which the insured was ignorant.6 The acceptance of the performance of a contract to construct a drain, made as the result of fraud or mistake, does not amount to a final waiver of breach.7 In order that acceptance of defective performance of a building contract may operate as a waiver it must be shown that the owner knew of the defects in performance.8
1 United States. Loudenback Fertilizer Co. v. Tonnessee Phosphate Co., 121 Fed. 298, 61 L. R. A. 402.
Alabama. Fike v. Stratton, 174 Ala. 641, 66 So. 029.
Idaho. Steltz v. Armory Co., 15 Ida. 551, 20 L. R. A. (N.S.) 872, 99 Pac. 98.
Massachusetts. Yorston v. Brown, 178 Ma88. 103, 59 N. E. 654.
Michigan. Stevenson v. Log Towing Co., 103 Mich. 412, 61 N. W. 536.
New York. Oswego Falls Pulp & Paper Co. v. Stecher Lithographic Co., 215 N. Y. 98, L. R. A. 1916B, 1257, 100 N. E. 92 (obiter).
North Carolina. 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.
Washington. Graham v. Bell-Irving, 46 Wash 607, 01 Pac. 8; Sevier v. Hopkins, 101 Wash. 404, 172 Pac. 550.
Wisconsin. Milwaukee Boston Store v. Katz, 153 Wis. 492, 140 N. W. 1038.
2 Freeman v. Gloyd, 43 Wash. 607, 86 Pac. 1051.
3 Schillinger v. Bosch-Ryan Grain Co., 145 Ia. 750, 122 N. W. 961 [affirming, 116 N. W. 132]; United Iron Works v. Rathskeller Co., 94 Wash. 67, L. R. A. 1917C, 445, 161 Pac. 1197.
4\V. 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; Sevier v. Hopkins, 101 Wash. 404, 172 Pac. 550.
5 Graham v. Bell-Irving, 46 Wash. 607, 9l Pac. 8.
6 Planters' Mutual Ins. Co. v. Loyd, 67 Ark. 584, 77 Am. St. Rep. 136, 56 S. W. 44.
7 For similar facts see Weaton v. Syracuse, 158 N. Y. 274, 70 Am. St. Rep. 472, 43 L. R. A. 678, 53 N. E. 12; Van Akin v. Dunn, 117 Mich. 421, 76 N. W. 938.
The fact that the departure from the specifications was plain does net dispense with knowledge thereof by the owner.9 If it is claimed that if one who has a right under contract to have his portrait inserted in a certain history, has accepted in place thereof its insertion in a so-called "portrait gallery" from which historical matter is omitted, it must be shown that he had full knowledge of his rights under the contract and that his portrait was omitted from the sort of work in which he had a right to have it inserted.10
However, if the want of knowledge is the fault of the party who is alleged to have waived a breach committed by the adversary party, his conduct may amount to a waiver of the breach-, even if its existence is unknown to him.11 If proof of printing is submitted to the party for whom the work is done, and he approves it, overlooking an error, he can not object to such error in the finished work as a breach.12