§ 678. Waiver. Performance of a condition may also be excused by waiver. Waiver is a troublesome term in the law. Its use is not confined to conditional contracts, and any satisfactory discussion of it must consider all its applications. It is used with different meanings and there are therefore necessarily conflicting judicial statements as to its requisites. The common judicial definition is: "an intentional relinquishment of a known right, " 17 or words of similar import. This definition is open to criticism for more reasons than one. In the first place it is likely to be understood as implying that any intentional relinquishment of a known right is necessarily effective. This is of course unsound. A contract right or other chose in action as a rule can no more be relinquished than created without consideration or a sealed instrument. A release or an accord and satisfaction is the ordinary way by which contractual rights are effectively relinquished. 18 That there are some exceptions, however, to the generality of the rule that a seal or consideration is needed in order to extinguish an intangible contractual right cannot be disputed. Especially where the dent to the defendant's obligation. No action by the defendant or notice from him was necessary to enable the plaintiff to name the surveyor. 17 Caulfield v. Finnegan, 114 Ala. 39, 48, 21 So. 484. This definition, or one of identified meaning, sometimes substituting "voluntary" for "intentional" may be found in the following cases and many others: First Nat. Bank of Los Angeles v. Maxwell, 123 Cal. 360, 368, 55 Pac. 980; State v. Hartley, 75 Conn. 104, 109, 52 Atl. 615; Star Brewery Co. v. Primas, 163 Ill. 652, 662, 45 N. E. 145; Currie v. Continental Casualty Co., 147 Ia. 281, 286, 126 N. W. 164, 140 Am. St. Rep. 300; Hurley v. Farnsworth, 107 Me. 306, 309, 78 Atl. 291; Kent v. Warner, 12 Allen, 561, 563; West v. Platt, 127 Mass. 367, 372; Eaton v. Globe & Rutgers F. Ins. Co., 227 Mass. 354, 116 N. E. 536, 539; Burnham v. Interstate Casualty Co., 117 Mich. 142, 153, 75 N. W. 445; Crawford v. Winterbottom, 88 N. J. L. 588, 589, 96 Atl. 497; Parsons v. Lane, 97 Minn. 98, 105, 106 N. W. 485; Clark v. West, 193 N. Y. 349, 360, 86 N. E. 1; Alsens &c. Cement Works v. Degnon Contracting Co., 222 N. Y. 34, 118 N. E. 210; List v. Chase, 80 Ohio St. 42, 49, 88 N. E. 120; Boynton v. Braley, 54 Vt. 92, 95; Barber v. Vinton, 82 Vt. 327; Rogers v. Whitney, 91 Vt. 79, 99 Atl. 419; Day v. Martin, 78 Va. 1, 7; Fraser v. Ætna L. Ins. Co., 114 Wis. 510, 523, 90 N. W. 476; Lukens Iron & Steel Co. v. Hartmann-Greiling Co., (Wis. 1919), 172 N. W. 894. And see Rice v. Fidelity, etc., Ins. Co., 103 Fed. 427, 435, 43 C. C. A. 270. 18 See supra, § 120; infra, §§ 1820, 1826, 1838, except certain obligations of formal characer which may be discharged by cancellation or surrender. See infra, §§ 1876 et seq. assertion of such a right seems fraudulent after conduct inducing the other party to suppose the right would not be asserted, courts of equity at least have held that the right is lost; but clear analysis requires recognition of the fact that such decisions involve either exceptions to or violations of rules governing the discharge of contracts laid down in many decisions, and involved in fundamental principles of the common law. Such recognition will aid in fixing the boundaries of any method which the law may allow of discharging rights by leading the other party to believe they would not be asserted. The definition of waiver quoted above gives no aid in determining these boundaries, and is objectionable otherwise. Whether waiver must be intentional and whether the right waived must be known, depend in great degree upon which of the various things called waiver the discussion is about, as will appear from the following sections. More progress will be made, therefore, if instead of considerint what courts have said about waiver, an analysis is attempted of the various meanings given the word and of the possible situations which may involve surrender of rights or excuses for non-performance, together with a statement of fundamental principles applicable to these situations. decisions may afterwards be examined in more detail. $679. Different meanings of the word waiver. The The impossibility of an adequate definition of waiver as a legal term without some narrower restriction than is usually imposed upon it will be evident if the different meanings with which the word is commonly used in connection with contracts are considered. The following distinct and different things are called waiver. 1. An agreement for sufficient consideration, made as part of or in substitution for an obligation previously made and still unperformed, which provides for a performance different from or substituted for that to which the parties were bound and entitled by the original obligation. This should be called a collateral promise or substituted contract or accord, which rescinds rather than waives the inconsistent terms of the prior obligation. 2. An election whereby a party who has a choice of alternative rights or remedies adopts one alternative and thereby destroys all right to the other alternatives. This is properly called election. 3. A promise or permission express or implied in fact, supported only by action in reliance thereon, to excuse performance in the future of a condition or to give up a defence not yet arisen, which would otherwise prevent recovery on an obligation. If waiver can be given any legal meaning narrower than the surrender of any right or defence by any means, this kind of surrender may properly be given the name. The promise is binding and the permission effective though without consideration; and though there is often said to be an estoppel and the case said to be distinguishable from waiver, there is not a true estoppel here for there is no misrepresentation of an existing fact. 19 It may be called a promissory estoppel. 4. A promise or permission express or implied, supported only by a promissory estoppel to excuse performance of an obligation not due at the time when the promise is made. Such a promise when effectual may perhaps also fairly be called waiver; for here also the discharge is binding, though there is neither consideration nor seal.20 19 A promise will often be implied from a permission. A permission not to perform a condition almost always implies a promise to fulfil the conditional obligation in spite of nonperformance of the condition. This, however, is not universally true. A promisor may say to the promisee in effect: "You need not perform that condition, but whether you do or not, I shall not perform my promise." As to the nature of a promissory estoppel, see § 139. 20 What is here called waiver may sometimes be implied from silence with knowledge of the facts. This is "acquiescence" in one of the meanings given to that word. In DeBussche v. Alt, 8 Ch. Div. 286, 314, Thesiger, J., "The term 'acquiescence' which has been applied to his conduct, is one which was said by Lord Cottenham in Duke of Leeds v. Earl Amherst (2 Ph. 117, 123), ought not to be used; in other words, it does not accurately express any known legal defence, but if used at all it must have attached to it a very different signification, according to whether the acquiescence alleged occurs while the act acquiesced in is in progress or only after it has been completed. If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This, as Lord Cotten 5. A promise express or implied without consideration to give up a defence which has already arisen or to be liable in spite of an excuse which has already freed the promisor; and where, therefore, there can be no promissory estoppel of the sort suggested in case 3. 6. A promise express or implied without consideration to release or discharge an obligor from a duty which has already arisen. Here also there is no promissory estoppel. 7. Actual or prospective prevention of performance of a promise or condition, or words or conduct showing that even though such promise or condition be performed, the counterperformance due will not be furnished.21 8. Laches destroying a right to equitable relief, which once existed. 9. Action in the course of judicial proceedings which deprives a party of a right. The plaintiff in an action based on a contract, or on any other cause, may make a retraxit, which "is an open and voluntary renunciation of his suit in court, and by this he forever loses his action." 22 So a general appearance ham said in the case already cited, is the proper sense of the term 'acquiescence' and in that sense may be defined as quiescence under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or release under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action, cannot take away such right, although under the name of laches it may afford a ground for refusing relief under some particular circumstances; and it is clear that even an express promise by the person injured that he would not take any legal proceedings to redress the injury done to him could not by itself constitute a bar to such proceedings, for the promise would be without consideration, and therefore not binding." Perhaps it should rather be said that acquiescence always means such non-action as to indicate assent that a known situation shall continue. The distinction seems rather to be in the effect of acquiescence than in the meaning of the word. Just as a promise may sometimes create legal consequences and sometimes may not, so acquiescence may form the basis of a true waiver, or it may not, according as change of position is made in reliance upon it. 21 For cases of this sort see supra, § 677, infra, §§ 767, 789. 22 3 Bl. Com. 296. See further Thomason v. Odum, 31 Ala. 108, 68 Am. Dec. 159; Barnard v. Daggett, 68 Ind. 305, 310; Hodges v. Council, 86 precludes objection to jurisdiction over the person of a defendant. In view of these different meanings of the word waiver it is obviously idle to attempt to define the requirements of a valid waiver unless its use is first confined to some one or more of its ordinary applications wherein the requirements of the law are identical. Until that is done there will be constant confusion of expression. One court will say "no question of estoppel as distinguished from waiver arises; " 23 another court will say "The basis of waiver is estoppel; " 24 another will say waiver unsupported by consideration is not binding; 25 another that "There should be, to constitute a waiver . . . either a contract supported by a consideration, or the necessary elements of estoppel;" 26 another that "The defence of waiver does not require any consideration beneficial to the waiver nor any element of estoppel." 27 All of these statements may be true of some one or more of the situations to which the word waiver is applied. None of the statements are true of all. An understanding of the law requires that each of these different legal transactions be looked at separately and its requirements determined. N. C. 181; Olcott v. Banfill, 7 N. H. 469, 479; Small v. Hoskins, 26 Vt. 209, 217. 23 Holdsworth v. Tucker, 143 Mass. 369, 376, 9 N. E. 764. 24 Equitable Life Assur. Soc. V. M'Elroy, 83 Fed. 631, 638, 49 U. S. App. 548, 28 C. C. A. 365. See also Hampton Stove Co. v. Gardner, 154 Fed. 805, 83 C. C. A. 521; Mobile Life Ins. Co. v. Pruett, 74 Ala. 487. See also Northwestern Ins. Co. v. Amerman, 119 Ill. 329, 10 N. E. 225, 59 Am. Rep. 799; New York, etc., Ins. Co. v. Watson, 23 Mich. 486; Underwood v. Farmers', etc., Ins. Co., 57 N. Y. 500; McFarland v. Peabody Ins. Co., 6 W. Va. 425. 25 Stackhouse v. Barnston, 10 Ves. 453. See also Belknap v. Bender, 75 N. Y. 446, 31 Am. Rep. 476; Lantz v. Vermont Ins. Co., 139 Pa. St. 546, 21 Atl. 80, 10 L. R. A. 577, 23 Am. St. 26 American Central Ins. Co. v. McCrea, 8 Lea, 513, quoted with approval in Dale v. Continental Ins. Co., 95 Tenn. 38, 50, 31 S. W. 266; See to similar effect Hasler v. West India S. S. Co., 212 Fed. 862, 129 C. C. A. 382; Haggarty v. Elyton Land Co., 89 Ala. 428, 7 So. 651; Ripley v. Ætna Ins. Co., 30 N. Y. 136, 86 Am. Dec. 362; Underwood v. Farmers' Ins. Co., 57 N. Y. 500; Atlantic, etc., R. Co. v. Bryan, 109 Va. 523, 528, 65 S. E. 30. 27 Cowie v. Strohmeyer, 150 Wis. 401, 136 N. W. 956, 982. See also Washburn v. Union Central Life Ins. Co., 143 Ala. 485, 38 So. 1011; Hanscom v. Home Ins. Co., 90 Me. 333, 38 Atl. 324; Parsons v. Lane, 97 Minn. 98, 106 N. W. 485; Titus v. Glens |