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.
Permitting a contractor to complete a building contract, or a construction contract, after the time fixed by such contract for performance, waives the right to treat such default as discharge.1 If one who has sold a business and agreed not to compete accepts payment therefor after the buyer is in default, the seller can not thereafter treat such default as discharging him from his covenant not to compete.2 If the buyer does not take the property within the time agreed upon, the seller may treat such default as a discharge; but if the seller continues to deliver such property without notice to the contrary, it will be presumed that he was delivering it under the original contract.3 While one who has delivered goods under a contract of sale without an agreement for credit, may retake such goods after the buyer takes possession thereof and fails to pay therefor, the conduct of the seller in permitting the buyer to keep possession of such goods operates as a waiver of such right.4 If the buyer has agreed to secure the permits which are necessary to enable the seller to deliver the goods which have been sold, the seller may waive such default on the part of the buyer by treating the contract as in effect after such default.5 If certain work is to be performed on receiving notice a certain time before performance is to begin, the omission to give such notice is said to operate as waiver of the duty of the adversary party to perform.6
Connecticut. Bronson v. Leibold, 87 Conn. 203, 87 Atl. 970.
Georgia. McAuhffe v Vaughan, 135 Ga 852, 33 L. R. A (NS.) 255, 70 S. E. 322.
. Illinois. Fitzgerrell v. Turner, 223 111. 322, 79 N E 76
Oregon. Miller v Beck, 72 Or. 140, 142 Pac. 603
Vermont. Mack v. Dailey, 07 Vt. 90, 30 Atl 686.
4 Spedden v. Sykes, 51 Wash. 267, 98 Pac. 752.
5 Cole v. United States, 23 Ct CI. 341; Prentiss v. Lyons, 105 La. 382, 29 So 944; Taylor v. Goelet, 208 N. Y. 253, 101 N. E 867; Spedden v. Sykes, 51 Wash 267, 98 Pac. 752; Walker v. MeMurchie, 61 Wash. 489, 112 Pac. 500.
Contract for sale of realty after default by vendee Monson v Bragdon, 159 111. 61, 42 N E. 383; Marx v Oliver, 246 111. 316, 92 N. E 864; Moore's Estate, 191 Pa St. 600, 43 Atl 474.
After default by vendor. Garbes v. Roberts, 98 Wis 173, 73 N. W. 995.
Contract for the sale of stork Jones v Brown, 171 Mass. 318, 50 N. E 648.
Contract for delivering bonds to be held as collateral security. Herr v. Sullivan, 25 Colo 190. 54 Pac. 637.
Contract for constructing streets after default by the contractor. Orem v Keelty, 85 Md 337, 36 Atl. 1030
6 Northwest Auto Co. v. Harmon, 250 Fed 832.
7 Stennick v. Jones, 252 Fed. 345 [opinion modified. 256 Fed. 354].
1 Kentucky. Louisville & Nashville Ry. v. Mason & Hoge Co (Ky.), 104 S. W. 975.
Michigan. Barnard v. McLeod, 114 Mich. 73, 72 N W 24.
Montana. Wortman v. Montana Central Ry., 22 Mont. 266. 56 Pac. 316.
Texas. Linch v. Elevator Co, 80 Tex. 23, 15 S W 208.
Washington. Brodek v Farnum, 11 Wash 565, 40 Pac 189; Long v. Pierce County, 22 Wash. 330. 61 Pac 142.
2 McAuliffe v Vaughan, 135 Ga. 852, 33 L R A. (N.S ) 255, 70 S. E. 322.
Breach of a contract to make a designated payment at a designated time, as a means of securing the release of a lot from a trust deed, is waived by the payee's recognizing such contract as still existing.7 A default on the part of the vendor of realty in perfecting the title by a certain time, is waived by the conduct of the purchaser in treating such contract as in effect,8 as by treating the contract as in effect while the vendor attempts to perfect the title,9 or by accepting the abstract after the time fixed for performance.10 Delay on the part of the purchaser may be waived by the conduct of the vendor in recognizing the contract as in effect,11 as by the conduct of the vendor in notifying the purchaser where the deed of the property can be obtained on payment therefor.12
Sec. 3054. Delay caused by party not in default, or assented to by him. That failure to take advantage of delay in performance as a discharge of the contract operates as a waiver is clear where the delay has been requested by the promisee,1 or where he has authorized the same in advance,2 or led the adversary party to believe that strict performance would not be insisted on,3 or where modifications of the contract requested by him have caused such delay in performance.4 An oral extension of time, whether valid as a new contract or not,5 operates in many jurisdictions as a waiver of the provision of the original contract, fixing the time of performance.6 If a machine is sold under a provision for its return in case it does not comply with certain requirements by a specified time, the request of the seller that the buyer keep the machine beyond such time, in order to enable the seller to adjust such machine, operates as a waiver of such provision as to time; and if such machine does not eventually satisfy such requirements, the seller may rescind after the expiration of such time.7 A delay in suing on an insurance policy for a period greater than that fixed by such policy, does not prevent recovery if made at the suggestion of an agent of the insurer.8 If the collector for a telephone company suggests a delay in the payment of rental for a telephone, the telephone company can not thereafter use such delay as a ground for forfeiture of the contract.9 Under a building contract a contractor is excused for delay which is caused by a change in the plans,10 or material11 ordered by the owner. Even if the contract provides that orders for extra work must be in writing, delay caused by the contractor's complying with oral orders of the owner is excused.12 On the other hand, he may decline to perform after the plans are changed unless the architects put extra allowance for changes in writing as required by the contract, and he may decline to act under oral allowance.13 However, if the promisor has specifically agreed to take all risks, he is not allowed to show that improper performance on the part of the promisee caused breach by the promisor.14
3 Cole v. United States, 23 Ct. Cl. 341.
4 Frech v. Lewis, 218 Pa. St 141, 120 Am. St Rep 864, 11 L R A. (N. S ) 948, 67 Atl. 45.
5 Fahey v Updike Elevator Co, -Neb -. 171 N. E 50
6 Mueller v. Cook, 120 Wis 504, 105 N. W. 1054.
7 Lapsley v. Howard, 119 Mo 489, 24 S W 1020.
8 Smith v Burnham, 2 Anstr. 527;
Seton v. Slade, 7 Ves. Jr. 265; Garrison v. Newton, 96 Wash. 284, 4 A. L. R. 804, 165 Pac. 90.
9 Garrison v. Newton, 96 Wash. 2S4, 4 A. L. R. 804, 165 Pac. 90.
10 Smith v. Burnham, 2 Anstr. 527; Seton v. Slade, 7 Ves. Jr. 265.
11 Marx v. Oliver, 246 111. 316, 92 N. E 864.
12 Marx v. Oliver, 246 111. 316, 92 N. E 864.
1 Hinckley v. Steel Co., 121 U S. 264, SO L. ed. 967; Guthrie v. Carpenter, 162 Ind. 417, 70 N E. 486; Barnes v. Stacy, 70 Wis. 55, 48 N. W 53; Lorens v. Hart-Parr Co., 146 Wis. 261, 50 L. R. A. (N.S.) 706, 131 N. W. 446.
2 United States. Emerson v. Slater, 63 U. S. (22 How.) 28, 16 L. ed. 360.
Illinois. Watson v. White, 152 I1L 364, 38 N. E. 002; Hills v. McMunn, 232 111 488, 83 N. E. 063.
Michigan. Loveridge v. Shurtz, 111 Mich. 618, 70 N. W. 132; Wallace v. Kelly, 148 Mich. 336, 118 Am. St. Rep. 680, 111 N. W. 1040.
Pennsylvania, Clark v. Bache, 186 Pa. St. 343, 40 Atl. 484.
Virginia. Atlantic & D. By. v. Construction Co., 08 Va. 503, 37 S. E. 13.
3 Lessell v. Goodman, 07 la. 681, 59 Am. St. Rep. 432, 66 N. W. 017.
4 Davis v. Badders, 95 Ala. 348, 10
So. 422; Cornish v. Suydam, 00 Ala. 620, 13 So 118.
5 See Sec. 2480 et seq.
6 Guthrie v. Carpenter, 162 Ind. 417, 70 N. E. 486; Wallace v. Kelly, 148 Mich. 336, 118 Am. St. Rep 580, 111 N. W. 1040; Lorenz v. Hart-Parr Co, 146 Wis. 261, 50 L. R. A. (N S) 706, 131 N. W. 446
7 Lorenz v. Hart-Parr Co, 146 Wis. 261, 50 L. R. A. (N.S.) 706, 131 N. W. 446.
8 Hall v. Union Central Life Insurance Co., 23 Wash. 610, 83 Am. St. Rep. 844, 51 L. R. A. 288, 63 Pac 505.
9 Ashley v. Telephone Co., 25 Mont. 286, 64 Pac 765.
10 Dodd v. Churton , 1 Q. B. 562; Texas & St. Louis Ry. v. Rust, 10 Fed. 230.
11 Vanderhoof v. Shell, 42 Or. 578, 72 Pac 126; Lilly v. Person, 168 Pa. St 210, 32 Atl. 23.