In a number of cases in which the party who is not in default has elected to continue performance, the courts have said that such conduct on his part was not, as a matter of law, a waiver of his right to recover damages because of such breach.1 It is said that acceptance of goods is not, as a matter of law, a waiver of a right of action for damages because of breach of warranty;2 and it is said that paying for the goods, or delivering a note therefor, and the like, is not of itself a waiver of a right of action for breach of warranty.3 This method of stating the effect of such conduct on the part of the party who is not in default, implies that such conduct might have amounted to a waiver if he had intended to waive his right; and, accordingly, it is frequently said that the question whether acceptance and the like on the part of the party who is not in default operate as a waiver of his right of action for damages, is a question for the jury.4 It is said that it is a question for the jury whether the acceptance of a deficient quantity amounts to a waiver of damages.5 If there is evidence tending to show that the party who is not in default has received value as a consideration for his act in giving up his right of action for damages, or if there is evidence tending to show that he has acquiesced in the performance tendered to him and has thus induced the adversary party to continue performance of that sort in the belief that it will be accepted as full satisfaction, it is, of course, proper to submit to the jury in a case which is a proper case for a jury trial, questions as to the existence of the facts which such evidence tends to show, and as to the inferences of fact to be drawn from the evidence. If, on the other hand, there is no evidence of this sort, the statement that the question of waiver is a question for the jury would seem to imply that, if the party who is not in default has renounced his claim for damages without any element of consideration or of estoppel, the jury should give effect to such renunciation.

15 Graves v. Melio, 81 Ark. 347, 09 S. W. 80; Avery v. Segura Sugar Co., lll La. 891, 35 So. 967.

16 Avery v. Segura Sugar Co., lll La. 891, 35 So. 967.

17 Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877.

18 Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877.

1 Arizona. Brought v. Redewill Music Co., 17 Ariz. 393, 153 Pac. 285.

Illinois. Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 lll. 582, 54 N. E. 987.

Kansas. Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516.

Massachusetts. Gilmore v. Williams, 162 Mass. 351, 38 N. E. 976.

Michigan. Brown v. Pendergast, 193 Mich. 313, 159 N. W. 541.

Ohio. Dayton v. Hooglund, 39 O. S.

671.

Oklahoma. .International Harvester Co. v. Lawyer, 56 Okla. 207, 155 Pac. 617.

Oregon. Morse v. Union Stock Yard*, 21 Or. 289, 14 L. R. A. 157, 28 Pac. 2.

Wisconsin. Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572.

2 Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 111. 582, 54 N. E. 987; Dayton v. Hooglund, 39 O. S. 671; Morse v. Union Stock Yards, 21 Or. 289, 14 L. R. A. 157, 28 Pac. 2.

3 Arizona. Brought v. Redewill Music Co., 17 Ariz. 393, 153 Pac. 285.

Kansas. Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516.

Massachusetts. Gilmore v. Williams, 162 Mass. 351, 38 N. E. 976.

Michigan. Brown v. Pendergast, 193 Mich. 313, 159 N. W. 541.

Oklahoma. International Harvester Co. v. Lawyer, 56 Okla. 207, 155 Pac. 617.

Wisconsin. Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572.