§ 141. Waiver of defects and objections.

Where work is agreed to be done within a certain time, if the contractor fails to complete it within that time, but is permitted to go on and finish it afterwards, and the work is accepted, he may recover the price. Cassady v. Clarke, 7 Ark. 123.

Where, as in case of a building, the work cannot be rejected without the owner surrendering his freehold, use and occupation does not amount to such acceptance as to bind defendant for the contract price, but he will be liable to extent of any benefit derived. Id.

After breach of a contract, a right of action under it may be waived by a new parol contract, but not before breach. Miller v. Hemphill, 9 Ark. 488.

One to whom new notes have been delivered in lieu of old notes and a mortgage, for the purpose of purging the original transaction of usury, under an agreement that a mortgage shall subsequently be given to him to secure the new notes, may waive such security and rely upon the notes alone. Garvin v. Linton, 62 Ark. 370, 35 S. W. 430.

Where an action on a note payable on condition that the payee should build a practical railroad between certain points was defended on the ground that the payee, in certain particulars set forth in the answer, had failed to perform his contract, a failure in a particular not set forth in the answer will be considered waived. Coffin v. Black, 67 Ark. 219, 54 S. W. 212.

As a general rule, a waiver, to be binding, must either operate by way of estoppel or be supported by a valuable consideration. Lawrence County v. Stewart, 72 Ark. 525, 81 S. W. 1059.

A literal compliance with the terms of a contract may be waived by the parties thereto. Keopple v. Delight Lumber Co., 105 Ark. 233, 151 S. W. 259.

Where work has been done substantially in accordance with the terms of a contract, or there has been an acceptance of the work, the contractor may, notwithstanding defects therein, recover the contract price, less the cost of correcting such defects. Fitzgerald v. La Porte, 64 Ark. 34, 40 S. W. 261.

A penalty in a written contract may be waived by the party for whose benefit it was inserted, and the facts in regard to its waiver may be proved by parol as well as written evidence. Rock Island Plow Co. v. Rankin, 89 Ark. 24, 115 S. W. 943.

Amendment No. 10 to the State Constitution, which was proposed by the Legislature of 1907 to be voted on in 1908, provided that in certain cases bonds could be issued by cities and towns, but that they should not bear a greater rate than five per cent. per annum, and that a special tax not to exceed three mills might be levied. Plaintiff's complaint alleged that he and defendant agreed that if plaintiff would demonstrate that if this amendment was adopted bonds bearing five per cent. interest would mature in one hundred years, bonds bearing four per cent. would mature in fifty years, bonds bearing three per cent. would mature in thirty-three and one-third years, and bonds bearing two per cent. would mature in twenty-five years, defendant would pay plaintiff $500, and that plaintiff had performed the contract. Held, that the complaint failed to state a cause of action, as the problem was impossible of solution. Barnett v. Glover, 94 Ark. 375, 127 S. W. 449.

§ 143. Discharge by death of party.

Where an intestate hired an overseer for a year, and died during the year, but the overseer served the whole year, the administrator was liable for the entire wages. McDaniel v. Parks, 19 Ark. 671.

Within the principle of death of the person excusing performance of a contract for a purely personal service, payment of a sum annually, which a corporation contracts to make, so long as a certain condition exists, is not such a service. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.

§ 144. Acts or omissions constituting breach in general.

One who has obligated himself not to engage in a mercantile business commits a breach of his contract, (1) if he engages in such a business, (2) or if, without engaging therein, he induces prospective customers of his obligee to so believe. Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467, 11 L. R. A. 81.

Under a contract whereby defendant was given the exclusive right to sell plaintiff's oil in Arkansas, no breach is proved by showing that plaintiff in good faith sold oil to a purchaser in another State and at such purchaser's request subsequently shipped such oil to Arkansas. Gay Oil Co. v. Muskogee Refining Co., 97 Ark. 502, 134 S. W. 639.

One who sells a business and agrees to refrain from competition for a certain term commits a breach of contract if, either individually or as a partner of a firm, he engages in the business. Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293.

A party to a contract is not justified in treating it as broken by the adverse party unless there has been a distinct and unequivocal intention, manifested either by word or conduct of the adverse party, not to perform the contract. Majestic Milling Co. v. Copeland, 93 Ark. 195, 124 S. W. 521.

One who manifests in unequivocal language his intention not to perform the contract unless it is modified breaches it, and is liable therefor. Ingham Lbr. Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139, 20 Ann. Cas. 1002.

A contract between the holder of a franchise to furnish natural gas to the inhabitants of a city and a gas corporation owning gas wells and a system for distribution in the city and a lighting corporation, authorized to furnish gas for domestic uses in the city and to buy and sell gas, bound the gas company to furnish natural gas to the lighting company, to be sold by it in the city, and stipulated that both parties would "promote and protect the interests of each other, and above those of any other person or corporation" and that the lighting company might purchase natural gas from others furnishing the same at lower figures, provided the lighting company should, before making any contract therefor, give to the gas corporation an opportunity to meet such prices, etc. Held that the quoted provision merely referred to the mutual protection of the parties in matters when their com

mon interests conflicted with those of another person, and did not prohibit each party from promoting his own interest when it conflicted with that of the adverse party, and that the lighting company did not violate the contract by organizing a competing company for the production and sale of gas in the city. Fort Smith Light & Traction Co. v. Kelley, 94 Ark. 461, 127 S. W. 975.

$145. Renunciation.

Though the performance of an executory contract is not yet due a renunciation thereof is a complete breach entitling the injured party to sue at once. Wendt v. Ismert-Hincke Milling Co., 107 Ark. 106, 154 S. W. 194.

In order for one party to a contract of sale to be justified in treating it as broken by the adverse party, there must have been a distinct and unequivocal intention, manifested either by words or conduct, not to perform the contract. Majestic Milling Co. v. Copeland, 93 Ark. 195, 124 S. W. 521.

§ 146. Breach by failure of performance.

A cause of action on an agreement by defendant to support plaintiff during his life will not arise until defendant either refused to render plaintiff the support promised, or did some act tantamount to such a refusal. Salyers v. Smith, 67 Ark. 526, 55 S. W. 936.

A contract of a railroad company to keep and maintain a station on plaintiff's land is broken where it fails to maintain a passenger depot on plaintiff's ground, though it maintains a freight depot there. St. Louis & N. A. Rd. Co. v. Crandell, 75 Ark. 89, 86 S. W. 855.

Where A. agreed to haul the logs from a certain tract of land for B., who agreed to keep a sufficient quantity of logs to furnish employment for A.'s teams, but failed to do so, A. had a right thereupon to abandon the contract and recover the amount already earned. Fletcher v. Verser, 79 Ark. 271, 96 S. W. 384.

Under a contract to furnish piling to a railway company at a specified price and to keep a specified amount thereof on hand at sidings ready for shipment, a failure to keep such amount on hand operates as a breach of the contract and releases the railway company from a compliance with its terms. Missouri Pac. Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943.

Where a railway company assented to the transfer of a certain shipping privilege, it will be held to have committed a breach upon its subsequently assuming the position that the shipping privilege

was lost by assignment. Jonesboro, L. C. & E. R. Co. v. Watts, 80 Ark. 543, 98 S. W. 358.

When plaintiff agreed to sell and defendant agreed to buy certain lumber, and a dispute arose between the parties as to the price to be paid, and defendant ordered only lumber of certain dimensions at prices less than those stipulated in the contract, and refused to pay the contract price therefor, he will be held to have committed a breach of the whole contract, for which he will be liable in damages. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S. W. 833.

§ 147. Waiver of breach.

After breach of a sealed contract, a right of action under it may be waived by a new parol contract, but not before breach. Miller v. Hemphill, 9 Ark. 488.

Mere silence will not constitute a waiver of a breach of contract; it is only where a party is silent when he ought to speak that he will be estopped to speak. Wood v. Planters' Oil Mill, 76 Ark. 570, 90 S. W. 18.

Giving receipt in full is waiver of damages for breach of contract. St. Louis, I. M. & S. Ry. Co. v. Pickett, 70 Ark. 226, 67 S. W. 870.

A contract for the delivery of chattels at a certain place may be waived by the parties. Southwestern Telegraph & Telephone Company v. Tarvin, 73 Ark. 467, 84 S. W. 504.

One who orders an article to be manufactured will be held to have waived any delay in its manufacture if, after such delay, he treats the contract as still in force and urges or permits the maker to continue performance. Tidwell v. Southern Engine & Boiler Works, 87 Ark. 52, 112 S. W. 152.

Where, in a contract for the erection of a manufacturing plant, it was stipulated that the plant should be built by plaintiff under the direction of a referee selected by defendant, the fact that such referee was present during the progress of the work and failed to exercise his right to disapproval while the work progressed did not stop defendant from rejecting the completed plant, where the contract stipulated for the right of acceptance or rejection on final test after completion of the work. Ark.-Mo. Zinc Co. v. Patterson, 79 Ark. 506, 96 S. W. 170.

A party to a contract containing a limitation as to the time for performance who induces the other party, after expira

tion of the limit, to continue in the performance of the contract will not be permitted to withhold the fruits of the contract because it was not performed within the specified time. Sticwel v. Lally, 89 Ark. 195, 115 S. W. 1134.

Where one party to a contract, with knowledge of a breach of contract by the other party, suffered the latter to continue in performance of the contract, he will be held to have waived the right to insist upon a forfeiture. Grayson-McLeod Lumber Co. v. Slack, 102 Ark. 79, 143 S. W. 580.

Where a party to a contract, with knowledge of breaches by the other party, solicits and receives an additional loan under the contract, it will be held to have waived the breaches of the contract. Alf Bennett Lumber Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S. W. 275.

The plaintiff will not be held to have waived a previous breach of a contract to cut timber by giving defendants notice to begin cutting at a certain date where defendants did not comply with such demand. Attridge v. Smith, 105 Ark. 626, 152 S. W. 300.

Whenever time is made essential to the performance of an agreement, either by the nature of the subject-matter or by express stipulation, the person entitled to insist upon such performance within time may waive his right thereto, either expressly or by conduct consistent only with a purpose to regard the contract as still subsisting, or by acceptance of payment after forfeiture might have been declared. American Mortgage Co. v. Williams, 103 Ark. 484, 145 S. W. 234.

The fact that, after a breach by appellants of a contract to receive quantities of potatoes, appellee continued to deliver other quantities, which appellant received, was not a waiver of the breach. Graves v. Melio, 81 Ark. 347, 99 S. W. 80.

Where there has been a breach of a contract sufficient to cause a forfeiture, and the party entitled to complain expressly or by conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary. Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989; Braddock v. England, 97 Ark. 393, 112 S. W. 883; Banks v. Bowman, 83 Ark. 524, 104 S. W. 209.

Any conduct on the part of one having the right to declare a forfeiture which is calculated to induce the other party to believe that a forfeiture is not to be insisted upon will be treated as a waiver. Thus,

where plaintiff granted a strip of land to a railroad company "for railroad purposes,' and thereafter for four or five years acquiesced in the railroad company granting licenses to various persons to use portions of such strip and permitted such licensees to make improvements thereon, and accepted licenses himself for portion of such land, he will be held to have waived any right that he might have had to declare a forfeiture. Ritter v. Thompson, 102 Ark. 442, 144 S. W. 910.

A right of action for breach of a sealed exemptory contract may be waived by parol, though such contract cannot be released or rescinded by a parol executory contract. Levy v. Very, 12 Ark. 148; Miller v. Hemphill, 9 Ark. 488.

Plaintiff held to have waived breaches not assigned in his complaint. John A. Gauger & Co. v. Sauver d Austin Lbr. Co., 88 Ark. 422, 115 S. W. 157.

§ 147a. Effect of breach in general.

Where one party to a contract commits the first substantial breach of it, the other is authorized to regard it at an end and bring suit for the balance due under the contract. Plunkett v. Winchester, 98 Ark. 760, 135 S. W. 860.

Where a party to a contract has, either by words or conduct, distinctly and unequivocally manifested his intention not to perform the contract, the other party will be justified in treating the contract as at an end for the purpose of suing for a breach thereof. Spencer Medicine Co. v. Hall, 78 Ark. 336, 93 S. W. 985.

Where the conduct of a party to a contract is tantamount to a refusal to perform, the other party is justified in treating the contract as rescinded. Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522, 135 S. W. 343.

Under the rule that he who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform, a vendor of certain timber cannot insist upon a forfeiture of a sum placed in a bank by the vendees as a guaranty that they will carry out the terms of their contract, where the vendor, prior to the alleged breach, was negotiating with a third party for the sale of the same timber. Keopple v. Delight Lumber Co., 105 Ark. 233, 151 S. W. 259.

§ 148. Discharge of contract by breach.

A party to an executory contract is discharged therefrom where the other party has renounced liability thereunder. Amer

ican Jobbing Association v. Wesson, 92 Ark. 287, 122 S. W. 664.

Failure of one party to a contract for the planting of fruit trees to furnish trees fit for planting held to discharge the other party from performance. Heffington v. Sturgis, 96 Ark. 647, 132 S. W. 920.

§ 149. Rights and liabilities on partial performance.

Where a contract to erect a building is only partially complied with, the owner, on accepting it, is liable for the price, less the damages occasioned by the variation from the contract. Bertrand v. Byrd, 5 Ark. 651.

Where a negro slave is hired for a year for a fixed price, and is drowned before the expiration of that time, without the hirer's fault, the owner can recover only for the time up to his death. Collins v. Woodruff, 9 Ark. 463.

Where a contract is mutually abandoned before completion, the contractee will be liable, upon acceptance, for the value of the work done. Prince v. Thomas, 15 Ark. 378.

Where one party to a contract waives the want of a complete performance on the part of the other, he may recoup damages for the breach, under plea of partial failure of consideration. Berry v. Diamond, 19 Ark. 262.

Where there is an entire contract to do work at a stipulated price for the whole, and part only is performed, if not accepted, there can be no recovery; but if accepted, or the work necessarily inures to defendant's benefit, plaintiff should recover the contract price, less the amount necessary to complete the work. Walworth v. Finnegan, 33 Ark. 751.

Where a contract for service is for a particular time, and payment is to be made, either expressly or by implication of law, at the end of the period, and the servant improperly leaves the master's service before expiration of the time, he cannot recover on the contract or on quantum meruit. Hibbard v. Kirby, 38 Ark. 102.

One who, after employing another, puts it out of the other's power to comply with the contract, will be liable to him for the value of his services. Woodberry v. Warner, 53 Ark. 488, 14 S. W. 671.

One who has entered into a contract to build a hedge fence for another, to be paid for in installments conforming to the growth of the hedge, has a right, after

making partial performance, to abandon the further performance of the contract where the latter has refused to pay the installments due, and to collect for the work already done at the contract price. Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886.

There can be no recovery where there is an entire contract to do certain work for a stipulated price for the whole, and only part thereof is performed, and such part is not accepted. Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 152, 143 S. W. 588.

If an entire contract to drill a well for a stipulated price was not performed and the work was not accepted, no recovery can be had. Brown v. Vestal, 112 Ark. 608. 166 S. W. 556.

$150. Rights and liabilities on defective performance.

A building contractor could recover on contract, on substantial performance or on acceptance of the work by the owner, notwithstanding defects therein, the contract price less the cost of correcting such defects. Mitchell v. Caplinger, 97 Ark. 278, 133 S. W. 1032.

§ 151. Rights and liabilities on breach.

Where parties enter into a contract by which the services to be performed and the consideration to be paid for them are made certain, such contract cannot be apportioned, and if the party fails to perform the services, he is not entitled to recover on the contract. Berry v. Diamond, 19 Ark. 262.

If the obligee in a contract does anything to obstruct or prevent the obligor from performing his part of the contract, the obligor is discharged from his obligation to perform it, and may demand performance at the hands of the other party. Lewis v. Boskins, 27 Ark. 61.

Where a debtor agrees to pay in money or property, his right to pay in property is not lost if his failure to pay was due to the conduct of the creditor. Brodie v. Watkins, 31 Ark. 319.

Where the damages for breach of a contract are liquidated by the term of the agreement, the sum fixed becomes the amount recoverable. Nix v. Draughon, 54 Ark. 340, 155 S. W. 893; Lincoln v. Little Rock Granite Co., 56 Ark. 405, 19 S. W. 1056; Nilson v. Jonesboro, 57 Ark. 169, 20 S. W. 1093.

In an action for the breach of a contract, no damages can be awarded for a

tort which attended the breach. O'Connell v. Rosso, 56 Ark. 603, 20 S. W 531.

Failure of one party to a contract to comply with its terms releases the other Missouri party from compliance with it. Pacific Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943.

Where a contract whereby plaintiff agreed to erect a manufacturing plant for defendant stipulated that defendant should make partial payments during the progress of the work, which were made, and that the work might be accepted or rejected after completion if it failed to come up to the requirements of the contract, the amounts so advanced, with interest from the dates of payments, are recoverable on the work being rejected for failure to comply with the contract. Ark.-Mo. Zinc Co. v. Patterson, 79 Ark. 506, 96 S. W. 170.

Where, within the life of a contract and through no fault of the plaintiffs, the defendant stopped them from work and declared that it would not perform its part of the contract, the plaintiffs were released from any further performance of the contract, and entitled to recover all damages sustained by the breach. Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139.

The obligations of a contract are mutual; and where a party thereto fails to comply with it, he may not hold the adverse party to a compliance therewith. Berman v. Shelby, 93 Ark. 472, 125 S. W. 124.

Defendant held liable under a contract for the use of advertising cuts for a year, though he refused to retain and use them. Outcault Advertising Co.. v. Bradley, 105 Ark. 50, 150 S. W. 148.

Where one of the parties to a contract breaches it, the other may thereupon bring suit. Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 152, 143 S. W. 588.

The one who is the first to break a contract cannot maintain an action to recover upon it. Ensign v. Coffelt, 119 Ark. 1, 177 S. W. 735.

§ 152. Evidence.

Where defendant pleads a breach of the contract by plaintiff, the burden is on plaintiff to show that he complied with the terms of the contract on his part in the particulars in which defendant alleged violation, and that defendant breached the contract giving plaintiff the right to treat it as rescinded. John A. Gauger & Co. v. Sawyer & Austin Lbr. Co., 88 Ark. 422, 115 S. W. 157.