the deed as full satisfaction of the vendor's obligation is another matter; but unlike the rule in regard to personalty, there is here as matter of law a discharge of the purchaser's rights in regard to the property which the deed purports to convey. The deed merges the contract and the purchaser has no redress except such as may be afforded under the covenants in the deed,40 unless fraud or mistake enables him to rescind the transfer, 41 or have the deed reformed.42 If the parties so agree there seems no difficulty of consideration even though the deed conveys something which is necessarily less than was contracted for. Presumably the deed would be regarded by the law as a thing or chattel, the value of which would not be inquired into. 41 § 724. Acceptance of defective performance under a contract for work or construction. Where work contracted for has been inadequately performed, there seems no difference in principle from the case presented where there has been defective performance of a contract for the purchase and sale of goods, except where the property upon which work has been done belongs to the employer and he is, therefore, obliged, in order to take or retain possession of his own property, to accept the work upon it. Subject to this exception if the defect in the work is or ought to be known, its acceptance will impose a duty to pay for it, and if no protest or complaint of the quality of the work is promptly made will also discharge any right of damages for defects in the performance. 43 40 Earle v. DeWitt, 6 Allen, 520; Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826, 43 Am. St. Rep. 499; Aird v. Alexander, 72 Miss. 358, 18 So. 478; Long v. Hartwell, 34 N. J. L. 116; Witbeck v. Waine, 16 N. Y. 532; Fisk v. Duncan, 83 Pa. 196. But a deed for one parcel will not merge the whole of a previous contract which bound the grantor to transfer also another parcel or perform a collateral act. Long v. Hartwell, 34 N. J. L. 116; Schoonmaker v. Hoyt, 148 N. Y. 425, 429, 42 N. E. 1059; Loring v. Oxford, 18 Tex. Civ. App. 415. See also Holdsworth v. Tucker, 143 Mass. 369, 373, 9 N. E. 764. See also infra, § 926. 41 Spurr v. Benedict, 99 Mass. 463; Darlington v. Gates Lumber Co., 142 Wis. 198, 125 N. W. 456, 135 Am. St. Rep. 1070. 42 See infra, §§ 1547 et seq. 43 Waters v. Harvey, 3 Houst. (Del.) 441; Fitts v. Reinhart, 102 Ia. 311, 71 N. W. 227; Mitchell Furniture Co. v. Monarch, 19 Ky. Law. Rep. 239, 39 S. W. 823; Adams v. Hill, 16 Me. 215; Taylor v. Butters, etc., Lumber Co., The But there is no legal presumption that the latter result follows from acceptance, unless a length of time unreasonable under the circumstances elapses without complaint. question is one of fact.44 Especially where the work in question results in attaching the property to the employer's real estate, as in case of a building contract, the law is clear that the occupancy and use of the building or other attached property does not of itself indicate assent to relieve the builder from liability or entitle him to sue upon the contract.45 Though 103 Mich. 1, 61 N. W. 5; Lackman v. Sinapson, 46 Mont. 518, 129 Pac. 325; Vandegrift v. Cowles Engineering Co., 161 N. Y. 435, 55 N. E. 941, 48 L. R. A. 685; Goldsmith v. Hand, 26 Ohio St. 101. See also Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; Lincoln Electric Heating Appliances v. Schultz, 203 Ill. App. 340; Monroe Waterworks Co. v. City of Monroe, 110 Wis. 11, 85 N. W. 685; Katz v. Bedford, 77 Cal. 319, 19 Pac. 523, 1 L. R. A. 826; California Southern Hotel Co. v. Callender, 94 Cal. 120, 29 Pac. 859, 28 Am. St. Rep. 99; Johnson v. Gallatin Valley Milling Co., 38 Mont. 83, 98 Pac. 883. "In Belleview Cemetery Co. v. Faulks, 6 Ala. App. 137, 60 So. 461, 462, the court said:-"One for whom another contracts to do specified work within a certain time and in a designated manner does not, by allowing the work to proceed after the expiration of the time named and accepting the benefit of it, waive his claim to damages for the delay or for the contractor's failure to comply in other respects with his part of the contract, and, when sued on the contract, may recoup the damages sustained in consequence of such defaults on the part of the plaintiff. Huntsville Elks' Club v. GarrityHahn Bld. Co., 176 Ala. 128, 57 So. 750; Woodrow v. Hawving, 105 Ala. 240, 16 So. 720; Gazzam v. Kirby, 8 Port. 253." See also Cocker-Wheeler Co. v. Varick Realty Co., 104 N. Y. App. Div. 568, 94 N. Y. S. 23. 45 Forman v. The Liddlesdale, [1900] A. C. 190, 204; United States v. Walsh, 115 Fed. 697, 52 C. C. A. 419 (dry dock); Fitzgerald v. LaPorte, 64 Ark. 34, 40 S. W. 261; Flannery v. Rohrmayer, 46 Conn. 558, 33 Am. Rep. 36; Burr v. Ellis, 91 Conn. 657, 101 Atl. 17; Cannon v. Hunt, 116 Ga. 452, 42 S. E. 734; Cummings v. Pence, 1 Ind. App. 317, 27 N. E. 631 (a drain); Kilbourne v. Jennings, 40 Ia. 473; Ludlow Lumber Co. v. Kuhling, 119 Ky. 251, 83 S. W. 634; Payne v. Amos Kent Brick Co., 110 La. 750, 34 So. 763 (machinery); Pope v. King, 108 Md. 37, 69 Atl. 417, 16 L. R. A. (N. S.) 489; Curtis v. Ogden, 217 Mass. 83, 104 N. E. 558; Japes v. Harmon, 176 Mich. 1, 141 N. W. 595; Stewart v. Fulton, 31 Mo. 59; Yeats v. Ballentine, 56 Mo. 530; Franklin v. Schultz, 23 Mont. 165, 57 Pac. 1037; Bozarth v. Dudley, 44 N. J. L. 304, 43 Am. Rep. 373; Feeney v. Bardsley, 66 N. J. L. 239, 49 Atl. 443; MacKnight Flintic Stone Co. v. City of New York, 13 N Y. App. D. 231, 43 N. Y. S. 139, 52 N. Y. S. 747, 31 N. Y. App. D. 232; Faulkner v. Cornell, 80 N. Y. App. D. 161, 80 N. Y. S. 526; Anderson v. Todd, 8 N. Dak. 158, 77 N. W. 599; Wiebener v. Peoples, 44 Okl. 32, 142 Pac. 1036; Otis Elevator Co. v. Flanders Realty Co., 244 Pa. 186, 90 Atl. 624 (elevator). But if the employer directs the work in many cases of defective performance the builder is permitted to recover on the contract or on principles of quasi-contract, his right to do so is not enlarged by the owner's occupancy of the building.47 But it also seems generally assumed, if not decided, that if the owner does assent to accept a defective building as full performance, the acceptance though in effect amounting to a surrender of a possible defence or right of action for no consideration, precludes subsequent objection. 48 to be done in a certain way or expresses satisfaction with that way, he cannot complain of work subsequently done in that way. Barnes v. Bradford (Iowa), 165 N. W. 306. 46 See infra, §§ 805, 1475. 47 In Walter v. Huggins, 164 Mo. App. 69, 148 S. W. 148, 151, 152, the court said: "The Supreme Court of the United States had before it a case where the plaintiff sued to recover the remainder of the purchase price of certain machinery installed in defendant's mill in a manner to make the machinery a part of the mill, and therefore a part of the land. The defence was that the machinery which was being used by the defendant did not comply with the contract. Held: 'In such a case, it would be most unreasonable to compel the defendant, in order to entitle him to avoid paying the whole contract price, or to recover damages for the plaintiff's breach of contract, to undergo the expense of taking out the machinery, and the prolonged interruption of his business during the time requisite to obtain new machinery elsewhere. Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601, 32 L. Ed. 1035. ... "There was no acceptance of the work, and the use of the building by the owner without having the work torn out and replaced did not alter its right to recover direct damages. Such use, of itself, cannot be construed as a waiver or acceptance. An owner has a right to occupy his house at any time he chooses, and it takes more than mere occupation to constitute an acceptance of work not done by the contractor in accordance with the contract." 48 Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Allen v. Mayers, 184 Mass. 486, 69 N. E. 220; Hanley v. Walker, 79 Mich. 607, 45 N. W. 57, 8 L. R. A. 207; Yeats v. Ballentine, 56 Mo. 530; Fuller v. Brown, 67 N. H. 188, 34 Atl. 463; McKenzie v. Decker, 94 N. Y. 650. In Hooper v. Cuneo, 227 Mass. 37, 116 N. E. 237, 238, the court said: "The defendant undoubtedly could recoup damages for defects from incompleted work, and for any loss as provided in the contract which he suffered by the delay, yet he could waive not only full performance, but whatever loss had been sustained, and accept the building as and when it was left by the plaintiffs. Norcross Bros. v. Vose, 199 Mass. 81, 85 N. E. 468; Buttrick Lumber Co. v. Collins, 202 Mass. 413, 419, 420, 89 N. E. 138. The question of waiver and of acceptance were issues of fact. Wood v. Blanchard, 212 Mass. 53, 56, 98 N. E. 616." See also Rogue River &c. Assoc. v. Gillen-Chambers Co., 85 Oreg. 113, 165 Pac. 1183, and cases in this section passim and supra, § 704. Under the English law there can be no doubt that such acceptance renders the owner liable for the price but it may be questioned whether he can thus deprive himself without consideration of his right of action. See 1 Hudson, Building Cont. (4th Ed.), 332. § 725. Continuance of contract of employment after cause for discharge is known. In the law of Master and Servant, if the master has cause justifying the discharge of the servant, and nevertheless continues, with knowledge of the facts, to receive the benefit of the servant's services, he cannot afterwards make the breach ground for discharge. 49 It is true that a number of authorities lay down the rule that the question whether the servant's breach of duty is excused as a ground for dismissal, by retaining him in his employment is a question of fact for the jury.50 These authorities are basd to some extent on the theory that waiver must be intentional, 51 and fail to observe that the question here presented is one of election and not of a form of waiver where even apparent intention is important. The employer has no right whether he desires it or not, and whatever intention he manifests, to continue the employment and yet retain the right to assert a breach of condition.52 It is true that an employee may consent to be retained on such terms, but his clearly expressed assent is necessary, for it cannot be presumed. What amounts to a continuance of services may involve a more troublesome question than what amounts to receipt of rent or the doing of any other single act. Employment is a continuing matter and to say that if the employer knowingly lets the employee continue to work a minute, an hour or perhaps a day "Horton v. McMurtry, 5 H. & N. 667, per Bramwell, B.; Jones v. Vestry of Trinity Parish, 19 Fed. 59; Roberts . Brownrigg, 9 Ala. 106; Brigham v. Carlisle, 78 Ala. 243, 56 Am. Rep. 28 (cf. Troy Fertilizer Co. v. Logan, 90 Ala. 325, 8 So. 46); Daniell v. Boston & Maine R. Co., 184 Mass. 337, 68 N. E. 337; Tickler v. Andræ Mfg. Co., 95 Wis. 352, 70 N. W. 292; Moody v. Streissguth Clothing Co., 96 Wis. 202, 71 N. W. 99. 50 Boston, etc., Co. v. Ansell, 39 Ch. Div. 339, 358; Newman v. Reagan, 63 Ga. 755; Atlantic Compress Co. v. Young, 118 Ga. 868, 45 S. E. 677; Murray v. O'Donohue, 109 N. Y. App. Div. 696, 96 N. Y. S. 335; Atkinson v. Heine, 134 N. Y. App. Div. 406, 119 N. Y. S. 122; Batchelder v. Standard 51 See supra, § 678. 52 The situation is in principle identical with that involved where a landlord receives rent after knowledge of breach of condition. See Davenport v. Queen, 3 App. Cas. 115. "Where money is paid and received as rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfeiture cannot countervail the fact of such a receipt." after he discovers the breach he has lost the right of discharge, is going too far. But prompt action should be required so that the master does not put himself in the inconsistent position of receiving benefit from the continuance of the contract while it suits his convenience so to do and at the same time reserving the right of ending it when that suits his convenience. Condonation of one breach of contract which would afford ground for the employee's discharge does not prevent the employer from considering the whole record of the employee when a further breach has been committed.53 § 726. Waiver of conditions in subscriptions to stock. Conditions in a subscription to stock which have not been complied with cannot be asserted if the subscriber with knowledge of the facts indicates his desire to proceed with his contract. This is a case of election. The subscriber may choose the advantage of escaping from liability under his contract, or the advantage of becoming a stockholder in the corporation. Any act which is only explicable as rightful on the theory that the subscriber has elected to become a stockholder is conclusive. Thus acting as a director or other officer by performing duties incidental to that office,54 or acting as a stockholder is 53 Daniell v. Boston & Maine Railroad, 184 Mass. 337, 340, 68 N. E. 337; Jerome v. Queen City Cycle Co., 163 N. Y. 351, 57 N. E. 485; Johnson v. Van Winkle, etc., Co., 130 N. C. 441, 41 S. E. 882; Hunter v. Gibson, 3 Rich. L. 161; Cook v. School Commissioners, 35 Nova Scotia, 405; McIntyre v. Hokin, 16 Ont. App. 498, 502. In Daniell v. Boston & Maine Railroad, 184 Mass. 337, 340, 68 N. E. 337, Loring, J., speaking for the court said: "By continuing to employ the plaintiff after knowledge of his delinquencies, whether before or after the use of discipline marks, the defendant elected not to discharge the plaintiff for those shortcomings but, as matters to be taken into account in case of a subsequent breach of duty, they were not waived. By continuing to employ the plaintiff after knowledge of a breach of duty the defendant waived its right to discharge him for that, but it did not waive the breach of duty, and in case of a subsequent shortcoming on the plaintiff's part the defendant had a right to take the plaintiff's whole record into account." In Hunter v. Gibson, 3 Rich. L. 161, an overseer had been guilty of repeated acts of intoxication in violation of an express provision in his contract of employment. The fact that the employer excused a number of instances of intoxication was held not to prevent him from subsequently discharging the overseer on the occurrence of further instances. 54 Auburn, etc., Association v. Hill, |