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 conduct of the party not in default, which is in accordance with his rights under the terms thereof, does not amount to a waiver of any of the terms of such contract which are inserted for his benefit.1 The act of one of the parties in demanding full performance of the original contract, does not amount to waiver, even though, through misconstruction of the contract, he demands more by way of performance than he is entitled to.2 Acceptance of a temporary bridge provided for by the contract does not amount to acceptance of a permanent bridge constructed thereafter under the contract.3 If the purchaser of goods has a right to accept such goods as conform to the terms of the contract, and to reject the rest, his conduct in accepting such goods as are in conformity to the terms of the contract is not a waiver of the defects in the goods which he rejects.4 Conduct which clearly shows the intention of the promisee not to accept the performance tendered, does not amount to a waiver of breach.5 While payment by a party who is not in default may, if unexplained, show his intention to waive breach by the adversary party, a payment which is coupled with a demand for performance of the contract by the adversary party does not amount to a waiver.6 If the owner denies that the contractor has performed his contract, but agrees to pay the contractor's workmen, such payment does not waive breach by the contractor.7 Still less does conduct by the promisee, which amounts merely to preparation on his part for performance, constitute an acceptance and waiver of breach.8 Where a number of farmers had contracted with A for the construction of a ditch, the fact that they levied an assessment upon themselves, and thereby raised the contract price, is not an acceptance of A's performance.9
"In the circumstances before us, a provision should not be deemed waived in the absence of clear and satisfactory evidence showing such to have been the intention of the parties, or showing an estoppel in pais. Certainly, the mere failure to do the very thing which the parties stipulated should work a forfeiture, is not sufficient. Otherwise the rule would be that, instead of a provision in a contract working a forfeiture under the circumstances therein prescribed, the doing of the thing which was stipulated should work a forfeiture would always be held not to do so, but to waive the conditions of the contract in that regard." Davis v. La Crosse Hospital Association, 121 Wis. 579, 00 N. W. 351.
1 Stimson Mill Co. v. Los Angeles Traction Co., 141 Cal. 30, 74 Pac. 357; Good speed v. United Shoe Machinery Co., 141 Mich. 672, 104 N. W. 982; Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 2 A. L. R 638, 154 N. W. 91.
2 Schneider v. Ann Arbor, 195 Mich. 599, 162 N. W. 110.
3 Stimson Mill Co. v. Los Angeles Traction Co., 141 Cal. 30, 74 Pac. 357.
4 Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 2 A. L. R. 638, 154 N. W. 91.
On the one hand, conduct on the part of the party who is not in default, which is consistent with his determination not to treat the defective performance as a satisfaction of his rights under the contract, can not amount to waiver.10 The fact that a contractor continues work in spite of a default in payment, does not operate as a waiver of such default as a discharge of the contract, if such contractor objects to such default at the time.11 The fact that the party who is not in default continues performance for a short time, so as to accommodate the party who is in default, is not inconsistent with his declaration that he treated such default as a discharge of the contract;12 and it does not prevent him from treating such contract as discharged by reason of such breach.13 In a jurisdiction in which the seller is permitted to accept such portion of the goods which are offered to him, as conforms to the terms of the contract, and to reject the rest, his action in so doing is not a waiver as to the articles thus tendered which do not satisfy the provisions of the contract.14 The action of the party who is not in default, in reliance upon the promise of the party who is in default to make good such default and to perform the contract in accordance with the terms thereof, does not amount to waiver of such default.15 If the seller assures the buyer that the defects in the thing sold are not serious and that he will remedy them, the action of the buyer in continuing to make use of the thing which he has bought is not waiver, as a matter of law.16 The act of the property owner in paying contractor under a contract, in reliance upon the promise of the contractor to continue performance and to furnish the property owner with receipts from the materialmen, is not a final waiver by the owner of his right to insist upon performance of such provisions.17 The act of a purchaser of realty in continuing performance is not a waiver of a defect in the title if he continues performance in reliance upon the vendor's promise to correct such defect.18
5 Gilliam v. Brown, 116 Cal. 454, 43 Pac. 486; California Well Drilling Co. v. California Midway Oil Co., 178 Cal. 337, 177 Pac. 849; Griffith v. Newell, 69 S. Car. 300, 48 8. E. 259.
6 Griffith v. Newell, 69 S. Car. 300, 48 8. E. 259.
7 Gilliam v. Brown, 116 Cal. 454, 48 Pac. 486.
8 Gilliam v. Brown, 116 Cal. 454, 48 Pac. 486.
9 Gilliam v. Brown, 116 Cal 454, 48 Pac 486.
10 Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 2 A. L. R. 638, 154 N. W. 91; Finnigan v. Worden-Allen Co., 201 Mich. 445, 167 N. W. 930; Bishop v. T. Ryan Const. Co., 106 Wash. 254, 180 Pac. 126.
11 Finnigan v. Worden-Allen Co., 201 Mich. 445, 167 N. W. 930.
12 Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac. 126.
13 Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 Pac 126.
On the other hand, in case of a variance between the acts and the declarations of the party who is not in default, effect will ordinarily be given to his acts which recognize the existence of the contract, in preference to his prior declarations which treat the contract as discharged.19 If the party who is not in default objects to the breach, but continues performance, his conduct in continuing performance is regarded as superseding his oral objection; and such conduct on his part operates as a waiver of such breach, in spite of his oral objection thereto.20
14 Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 2 A. L. R. 638, 154 N. W. 01.
15 Schillinger v. Bosch-Ryan Grain Co., 145 la. 750, 122 N. W. 061 [affirm-ing, 116 N. W. 1321; Roper v. Wells, 182 la. 237, 165 N. W. 385; Read v. Loftus, 82 Ran. 485, 31 L. R. A. (N.S) 457, 108 Pac. 850; United Iron Works v. Rathskeller Co., 94 Wash. 67, L. R. A. 1017C, 445, 161 Pac. 1107.
16 Roper v. Wells, 182 la. 237, 165 N. W. 385; United Iron Works v. Rathskeller Co., 94 Wash. 67, L. R. A. 1917C, 445, 161 Pac. 1107.
17 Schillinger v. Bosch-Ryan Grain Co., 145 la. 750, 122 N. W. 061 [affirming, 116 N. W. 132].
18 Read v. Loftus, 82 Kan. 485, 31 L. R. A. (N S.) 457, 108 Pac. 850.
19 Trinidad Asphalt Manufacturing Co. v. Buck staff Bros. Manufacturing Co., 86 Neb. 623, 136 Am. St. Rep. 710, 126 N. W. 293.
"There is much force in plaintiff's argument that great loss would accrue to it by a sudden termination of business relations between the parties, and that it ought not to be subjected to such loss as a condition of insisting upon the forfeiture. On the other hand, should plaintiff be permitted to reap the benefits of the agreement and at the same time claim that it was canceled? The loss to the defendants from a sudden termination of business relations and their loss after a short prolongation thereof would not differ very materially, while to the plaintiff, if it could continue the business uninterruptedly, the difference would be very great. In the latter case it might sustain practically no loss at all, while in the former it might seriously affect its whole business for a time. When it elected to break with the defendants it was incumbent upon it to weigh the advantages and disadvantages of the situation. It ought not to be permitted to accept the advantageous part, namely, that of securing control of defendants' business, and at the same time compel them to accept its terms of a temporary continuance thereof in order that it might relieve itself from the consequent loss of flatly standing upon its right of forfeiture. When declarations and conduct are at variance, as here, the conduct and acts of the party must be held to outweigh the declarations and be controlling. For these reasons it is considered that the plaintiff, by its continuing the business with the defendants in the manner and under the circumstances stated after October 2, 1911, waived the forfeiture." Milwaukee Boston Store v. Kate, 153 Wis. 492, 140 N. W. 1038.