The justice of the rule that acceptance after breach, even though a waiver of the right to treat such breach as discharge,1 is not a waiver of a right of action for damages, is especially clear in cases in which the party who is not in default is constrained by his necessities to take what he can get under his contract when he can get it.2 Such conduct does not and should not operate as a waiver of the right of action for damages.3 The owner of realty upon whose land a building has been constructed, has, in many cases, no practical choice between making use of such building with all its defects, and abandoning his realty; and in cases of this sort it is held that his taking possession of the building is not a waiver of his right to recover damages for breach of the building contract,4 in the absence of conduct on his part, inducing the contractor to perform in the manner in which he has performed. This is especially clear if the owner gives notice when he takes possession, that he will claim damages,6 or if he takes possession under a clause in the contract which permits him to take possession of the building and to complete the construction thereof.7 The fact that the occupant of a building makes regular payments under a contract to furnish heat therefor, does not prevent him from recovering damages for failure to furnish the heat in accordance with the terms of the contract.8 While a purchaser of goods acts at his peril in surrendering them to one who claims to be a true owner thereof, his act in surrendering such goods to one who is in fact the true owner, is not a waiver of his right to recover damages on an implied warranty of title.9 The fact that a shipper permits the carrier to transport perishable goods on a car which is not properly iced, does not waive his right of action to recover damages if he has no available means of transporting such goods in any other way,10 and especially if he believes in good faith that the shipper will perform.11 A sold timber to B and by the same contract gave to B the right to use A*s sawmill. B made contracts to sell and deliver timber to others. A subsequently took possession of the mill and refused to surrender it to B. In order to fill his contracts, B furnished timber to the mill and received lumber therefor. Such conduct did not waive B's right to sue for breach of contract.12 So if defective machinery is erected under a contract for first-class machinery, and the vendee can do nothing better than accept it and use it, he does not waive his claim for damages.13 If A has engaged a theatrical company to give a performance in his theater, has sold tickets and invested the proceeds in advertising, his acceptance of the performance does not waive his right to claim damages.14

1 Brady v. Cassidy, 143 N. Y. 171, 39 N. E. 814.

2 California. Leonard v. Home Builders, 174 Cal. 65, L. R A. 1917C, 322, 161 Pac. 1151.

Iowa. Brent v. Head, 138 la. 146, 16 L R A (N S ) 801, 115 N. W. 1106.

Maryland. Pope v. King, 108 Md. 37, 69 Atl 417.

Massachusetts. Garfield & Proctor Coal Co. v. Fitchburg Ry., 166 Mass. 119, 44 N. E. 119.

Michigan, Johnson v. Toledo, Saginaw & Muskegon Ry. Co, 1X3 Mich. 596, 103 Am. St. Rep. 464, 95 N. W. 724.

Minnesota. Sargent v. Mason, 101 Minn. 319, 112 N W. 255.

3 United States. Frankfurt-Barnett Co. v. Prym Co, 237 Fed 21, L. R A. 1918A, 602.

Arkansas. Lawrence County v. Stewart, 72 Ark. 525, 81 S. W. 1059; East Arkansas Lumber Co v. Swink, 128 Ark 240, 194 S. W. 5.

California. Leonard v. Home Builders, 174 Cal. 65, L. R. A. 1917C, 322, 161 Pac. 1151.

Iowa. Brent v. Head, 138 la. 146, 16 L. R. A. (NS.) 801, 115 N. W. 1106.

Maryland. Pope v. King, 108 Md. 37, 69 Atl 417.

Michigan. Johnson v. Toledo Ry. Co., 133 Mich. 596, 103 Am St Rep. 461, 95 N W 724.

Minnesota. Sargent v. Mason, 101 .Minn 319, 112 N. W. 255

Pennsylvania. Bucklin v. Davidson, 155 Pa St. 362, 26 Atl 643.

Wisconsin. Ketchum v Wells, 19 Wis 26.

For the opposite theory, sec Sec. 3070.

4 Alabama. Waktrom v. Oliver-Watts Construction Co, 161 Ala 608, 50 So 46.

Arkansas. Lawrence County v. Stewart, 72 Ark 525, 81 S W. 1059.

California. Leonard v. Home ' Builders, 174 Cal. 65, L. R. A. 1917C, 322, 161 Pac. 1151.

Iowa. Brent v. Head, 138 la. 146, 16 L R A. (N S ) 801, 115 N W 1106.

Maryland. Pope v. King, 108 Md. 37, 16 L. R. A. (N S ) 480, 69 Atl. 417.

Michigan. Hanley v. Walker, 79 Mich 607, 8 L. R. A 207, 45 N. W. 57; Gier v. Daiber, 148 Mich. 190, 111 N. W. 773; Frolich v. Klein, 160 Mich. 142, 125 N. W. 14; Japes v Harmon, 176 Mich. 1, 141 N. W. 595.

Oklahoma. National Surety Co. v. Board of Education, - Okla. -, 162 Pac. 1108.

5 See Sec. 3064.

6 Leonard v. Home Builders, 174 Cal. 65, L R. A. 1917C, 322, 161 Pac. 1151.

7 East Arkansas Lumber Co. v. Swink, 128 Ark. 240, 194 S. W. 5.

8 Sargent v. Mason, 101 Minn. 319, 112 N. W. 255.

9 Alabama. Hafer v. Cole, 176 Ala. 242, 57 So 757.

Minnesota. Jordan v. Van Duzee, 139 Minn. 103, L. R. A. 1918B, 1136, 165 N W. 877.

New York. Cahill v. Smith, 101 N. Y. 355, 4 N. E. 739.

North Carolina. Hodges v. Wilkinson, lll N. Car. 56, 17 L. R. A. 545, 15 S. E. 941.

Oklahoma. Ctarenger v. Lewis, 20 Okla. 837, 16 L. R. A. (N S.) 410, 95 Pac. 230.

10 Johnson v. Toledo Ry. Co., 133 Mich. 606, 103 Am. St. Rep. 464, 95 N. W. 724.

11 Johnson v. Toledo Ry. Co., 133 Mich. 596, 103 Am. St. Rep. 464, 95 N. W. 724.

12Bucklin v. Davidson, 155 Pa. St 362, 26 Atl 643.

13 Payne v. Lumber Co., 110 La. 750, 34 So. 763.

14 Charley v. Potthoff, 118 Wis. 258, 95 N. W. 124.

As it is the duty of the party who is not in default to take proper steps to mitigate damages, such conduct does not amount to a waiver of damages.15 If A has agreed to refine B's sugar, and A, being unable to perform, contracts with X to refine it, B's conduct in acquiescing in such agreement is not a waiver of a claim for damages.16

Surrender of property by a purchaser to the true owner is not a waiver of his right against the seller on an implied warranty of title,17 although he surrenders such property without waiting for judicial process to issue.18