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 other jurisdictions, however, language is used which seems to indicate that the courts held that the fact that the party who refuses to perform bases his refusal upon some specific ground, such as a specific breach by the adversary party, is a waiver of other defenses, such as other breaches by the adversary party, if such other defenses are known to him or are brought to his notice.1 This is justified on the ground that a technical forfeiture will not be encouraged and that a party who attempts to rely thereon will be held to waive it if he does not assert his intention to take advantage thereof.2 If the property owner denies liability on a building contract, such denial is said to waive a defense that the action was brought before the time fixed by the contract for bringing an action thereon.3 A refusal to perform a contract to forward cattle, on the ground that the promisor did not have a sufficient number of cars, prevents the carrier from subsequently urging the objection that in that state it was illegal to forward on Sunday.4 A refusal of a tender of the purchase price made by an assignee of the vendee on the ground that the amount is insufficient, waives breach of a provision forbidding assignment.5 Refusal to accept goods tendered in performance of a contract of sale upon the sole ground that such delivery is too late, waives the objection that the entire amount of goods purchased must be delivered in one lot.6 If a vendor stops delivering goods upon the sole ground that he has fully performed his part of the contract, he waives breach on the part of vendee by his failure to pay for prior instalments when due.7 A refusal to accept goods on some other ground is said to waive the objection that the proper quantity of goods has not been tendered.8 A refusal to accept performance on the ground that the realty has been encumbered by a mortgage, has been said to operate as a waiver of a failure to tender rent for a given period of time.9 Refusal to pay an insurance policy on the ground that the insured has no title to the premises, waives objections which might have been urged against the proof of loss.10 A refusal to perform on the ground that the contract is for some reason unenforceable, as because of the Statute of Frauds,11 waives objections to the performance actually tendered.
5 Sunshine Cloak & Suit Co. v. Ro-quette, 30 N. D. 143, L. R. A. 1916E, 932, 152 N. W. 359.
6 List & Son Co. v. Chase, 80 O. S. 42, 88 N E 120.
7 List & Son Co. v. Chase, 80 O. S. 42, 88 N E 120.
8 Sunshine Cloak & Suit Co. v. Ro-quette, 30 N D. 143, L. R. A. 1916E, 932, 152 N. W. 359.
9 Koch v. Streuter, 232 III. 594, 83 N. E. 1072.
10 McCarter v. Rogers, 104 Kan. 204, 178 Pac. 621.
1 1llinois. Monson v. Bragdon, 159 III. 61, 42 N. E. 383; Olcese v. Mobile Fruit & Trading Co., 211 111. 539, 71 N. E. 1084; Andrew Lohr Bottling Co.
v. Ferguson, 223 111. 88, III Am. St. Rep. 305, 79 N. E. 35.
Kentucky. Robert Mitchell Furniture Co. v. Monarch (Ky ), 39 S. W. 823.
Massachusetts. Marlborough Gaslight Co. v. Neal, 166 Mass. 217, 44 N. E. 139; Goddard v. Morrissey, 172 Mass. 594, 53 N. E. 207.
Nebraska. Hixson Map Co. v. Post Co., 5 Neb. (unoff.) 388, 98 N. W. 872.
Wisconsin. Wright v. C. S. Graves Land Co., 100 Wis. 269, 75 N. W. 1000.
2 Bast v. Byrne, 51 Wis. 531; Wright v. C. S. Graves Land Co., 100 Wis. 269, 75 N. W. 1000.
3 Andrew Lohr Bottling Co. v. Ferguson, 223 III. 88, 114 Am. St. Rep. 305, 79 N. E. 35.