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.
To operate as a waiver the conduct of the party who is not in default must be such as to show affirmatively his intention to treat the contract as still in effect.1 This intention may either actually exist or it may so appear to exist as to mislead the adversary party and thus work an estoppel.2
8 Hayster v. Owen, 61 Mo. 270; Farmers' & Traders' National Bank v. Woodell, 38 Or. 294, 61 Pac. 837, 65 Pac. 520; Moore v. Carter, 146 Pa. St. 492, 23 Atl 243.
9 Moore v. Carter, 146 Pa. St. 492,
23 Atl. 243.
10Yorston v. Brown, 178 Mass. 103,
69 N. E. 654.
11 Skinner v. Norman, 165 N. Y. 565, 80 Am. St. Rep. 776, 59 N. E. 309.
12 Giles Lithograph & Liberty Printing Co. v. Chase, 149 Mass. 459, 14 Am. St. Rep. 439, 4 L. R. A. 480, 21 N. E.
765. 1 Colorado. Boulder Co. v. Maxwell,
24 Colo. 87, 48 Pac. 815.
Iowa. Singmaeter v. Robinson, 181 la. 522, 164 N. W. 776; Roper v. Wells, 182 la. 237, 165 N. W. 385.
Maine. Campion v. Marston, 99 Me. 410, 59 Atl. 548.
Massachusetts. Wilkinson v. Mfg. Co., 169 Mass. 374, 47 N. E. 1020.
Michigan, Steams Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 2 A. L. R. 638, 154 N. W. 91.
Minnesota. Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877.
Montana. First National Bank v. Carroll, 35 Mont. 302, 88 Pac. 1012.
North Dakota. Sunshine Cloak & Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E, 932, 152 N. W. 359; International Harvester Co. v. Thomas, -N. D. -, 176 N. W. 523.
Ohio. Rheinetrom v. Steiner, 69 O. S. 452, 69 N. E. 745.
Oklahoma. Roes v. Sanderson, -Okla. -, L. R. A. 1917C, 879, 162 Pac. 709; Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. R. 1434, 181 Pac. 288.
South Carolina. Griffith v. Newell, 69 S. Car. 300, 48 S. E. 259.
Silence on the part of the party not in default does not of itself amount to a waiver.3 If the promisor wrongfully refuses performance, the fact that the promisee is still ready and willing to perform if the promisor will continue to perform, does not of itself show that he has not accepted the promisor's renunciation as a final breach terminating the contract.4 His unaccepted offer to continue the contract after breach on certain specified terms does not waive such breach.5 The act of the party who is not in default, in signing a written instrument which contains a waiver, is not binding on him if he signs through fraud as to its contents and in ignorance of the provisions of such waiver.6
The act of the party in default can not amount to a waiver.7 A provision in a construction contract to the effect that an agreement for extra compensation should be indorsed on the contract, is not waived by the performance of such work.8
Washington. Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac. 126.
Wisconsin. Davis v. La Crosse Hospital Assn., 121 Wis. 570, 99 N. W. 351.
"The question of waiver is mainly a question of intention. Gardner v. New London, 63 Conn. 267, 28 Atl. 42. It involves the notion of an intention on the part of one having a right to relinquish it." Frankfurt-Barnett Co. v. Prym Co., 237 Fed. 21, L. R. A. 1918A, 602.
2 Starr v. Ship Co., 68 Fed. 234.
3 Eaton v. Gladwell, 108 Mich. 678, 66 N. W. 598; Ross v. Sanderson, -Okla. -, L. R. A. 1917C, 879, 162 Pac. 700; Davis v. La Crosse Hospital Assn., 121 Wis. 579, CO N. W. 351.
4 Mutual Reserve Fund Life Association v. Taylor, 90 Va. 208, 37 S.
5 Sheffield Furnace Co. v. Coke Co., 101 Ala. 446, 14 So. 672.
6 International Harvester Co. v. Thomas, - N. D. -, 176 N. W. 523.
7 Davis v. La Crosse Hospital Association, 121 Wis. 579, 09 N. W. 351.
8 Davis v. La Crosse Hospital Association, 121 Wis. 579, 00 N. W. 351.
"In support of the court's ruling that the provision of the contract in regard to forfeiting claims for additions to the contract work and material was waived, counsel for respondents suggest that such a provision can be waived, and cite Bannister v. Patty's Exrs, 35 Wis. 215. True, such a provision can be waived, but that does not warrant holding, whenever a thing is done under a contract for which, by the terms thereof, additional compensation is dependent upon a certain specified condition being complied with, that such condition was waived as a matter of course because no notice was taken thereof. Such a method of dealing with a contract would result in sanctioning the very looseness, and suggest and give countenance to the very class of controversies such provisions are designed to prevent. There would be, then, little or no use of making a written contract at all, containing such guards, because if one were made the court, upon a controversy thereunder occurring, would look to what was in fact done and test the contract by that instead of testing what was done by the contract in determining the legal rights of the parties. There is, at times, rather too much of a tendency to do that, the court acting as a mere Arbitrator instead of judicially giving to each party bis legal rights. Parties must be left to make their own contracts, and without any protection from improvident provisions embodied therein, in the absence of clear evidence of a modification or some relievable fraud, or mistake. A contract once made can be subsequently varied by the parties thereto, and by parol, but a mere breach of contract, or failure to comply with the provisions therein upon which certain advantages are made to depend, should not be deemed a waiver of those parts of the agreement which would otherwise condemn the party guilty of the breach to damages, or condemn the party failing to perform such agreement to lose the advantages just as the contract provides.