If one of the parties to a contract tenders performance which is substantially different in kind, and not merely in degree, from the performance which is required by the contract, and the adversary party accepts such performance, apparently as satisfaction of the contract, it is generally held that the party who has accepted such performance can not maintain an action to recover damages for the difference between the value of the performance which was prescribed by the contract and the value of the performance which was actually tendered and received.1 If A offers a quantity in excess of that fixed by a contract of sale, and B accepts such quantity with knowledge that it is in excess, it is held that B is liable for such excess quantity.2 Acceptance of materials tendered in performance of a building or construction contract, subject to inspection by the owner or his agent, waives objection to such materials as being defective.3 If A permits B without objection from A to make side connections for a steam-heating plant instead of top connections as provided for by contract, A can not have deducted from the contract price the amount which it would cost to change such connections to make them conform to the contract.4 No damages for extra expenses in unloading lumber on account of alleged bad piling can be recovered by one who had the option to do such piling himself if the cost to the adversary party was not increased and who made no objection to the manner of piling until after suit was begun.5 If A has agreed to furnish certain street-ear advertising for B, and such advertisements are to be placed in a specified position, it has been held that B must pay the full contract price for advertisements which were placed out of such position and in inferior position, without deduction for such breach, if B knew that such advertisements were out of position and acquieseed therein.6 If one party has acquiesced in delay on the part of the adversary party, the party who has thus acquiesced can not recover damages for faiture to carry out the contract in accordance with its original terms.7

17 Frankfurt -Barnett Co. v. Prym Co., 237 Fed. 21, L. R. A. 1918A, 602; Arkansas & Texas Grain Co. v. Young & Fresch Grain Co., 79 Ark. 603, 116 Am. St. Rep. 90, 96 S. W. 142; Graves v. Melio, 81 Ark. 347, 99 S. W. 80; Brent v. Head, 138 la. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106; Endriss v. Ice Co., 49 Mich. 279. (Such question was here held to be one of fact to be passed upon by the jury.)

18 Arkansas & Texas Grain Co. v. Young & Fresch Grain Co., 79 Ark. 603, 116 Am. St. Rep. 99, 96 S. W. 142; Graves v. Melio, 81 Ark. 347, 99 S. W. 80.

1 lowa. Fitts v. Reinhart, 102 la. 311, 71 N. W. 227.

Louisiana. Nix v. Johnson, - La. -, 82 So. 409.

Michigan. Taylor v. Lumber Co., 103 Mich. 1, 61 N. W. 5; Ayer v. Devlin, 179 Mich. 81, 146 N. W. 257.

Ohio. Goldsmith v. Hand, 26 O. S. 101.

Wisconsin. Laycock v. Moon, 07 Wis. 50, 72 N. W. 372.

2 Barton v. Kane, 18 Wis. 262.

3 Beck Coal & Lumber Co. v. H. A. Peterson Mfg. Co., 237 111. 250, 86 N. E. 715; Owensboro City Ry. Co. v. Barber Asphalt Paving Co. (Ky.), 107 S. W. 244; Laycock v. Moon, 97 Wis. 59, 72 N. W. 372.

To waive damages, however, such acceptance and acquiescence must be absolute and unqualified.8Acceptance after breach of performance of a specified part of the contract does not waive the right to recover damages for the breach of the remainder.9

Whether acceptance of performance, which is in some respects the performance of a thing substantially different from that provided for by the contract, prevents recovery of damages for failure to perform the contract itself, on the theory that the parties have entered into a new contract, or on the theory that the party who has acquiesced in such modified performance is estopped from recovering damages because of the variance between the performance in which he has acquiesced and the performance for which he originally stipulated, is a question upon which there appears to be a great divergence of opinion, if the language which is used by the courts in explaining the result which is reached can be relied upon. In most of these cases the result is the same, whether it is explained as a new contract or as estoppel; and accordingly the courts have not been over-particular as to which of the explanations was invoked. Most of these cases would seem to be justified on the theory of a new contract which is a genuine contract, although not always a contract set forth in words. If the party who offers such performance, offers it in full satisfaction, and the party to whom it is offered accepts it in this way, it is a form of new contract which differs from ordinary new contract only in that the offer and the performance take place at the same time.10 It is analogous to accord and satisfaction, from which it differs only when the offer of a different kind of performance is made at the time fixed by the original contract for performance, instead of being: offered after the original contract has been broken.11

4 Fitts v. Reinhart, 102 la. 311, 71 N. W. 227.

5 Taylor v. Lumber Co., 103 Mich. 1, 61 N. W. 5.

6 Ayer v. Devlin, 179 Mich. 81, 146 N. W. 257.

7 Nix v. Johnson, - La. -, 82 So. 409.

8 Brownell Improvement Company v. Critchfield, 197 111. 61, 64 N. B. 332 [affirming, 96 111. App. 84]; Brent v. Head, 138 la. 146, 16 L. R. A. (N.S.) 801, 115 N. W. 1106.

9 Sullivan v. McMillan, 26 Fla. 543, 8 So. 450.