ances, 32 especially if they are all defective in the same respect, may justify belief not only that performance of that character has been satisfactory to the promisor in the past but that it will be satisfactory as a performance of future conditions. Thus, where the exact time of performance is made of the essence by the contract between the parties, continued acceptance of late performance without objection, operates as a permission to make similarly late performance in the future. This principle finds frequent application in insurance law, 33 and in the law of landlord and tenant.34 And where the provision in a building

contract that payments should be made only on certificate of the architect had been repeatedly disregarded, and the architect was satisfied with the work, deviations having been made at his direction, a verdict for the contractor for a balance due was held warranted, the owner having almost daily supervised the work, and made no compliant as to the deviations. 35

It has been said where performance on the exact date fixed by an executory contract has once been excused, neither party can rescind on account of delay, without first giving notice requiring performance within a reasonable time specified, but as a broad proposition even this goes too far.37 Neither party can deceive the other into a belief that prompt performance will not be required and then demand it, but what may amount to such deception depends on the circumstances of each case.

In contracts to buy and sell if the buyer receives and accepts some instalments of inferior goods, this is not ordinarily equivalent to an assent to receive subsequent instalments of similarly inferior goods. 38 It is obvious that if such a contract required numerous deliveries, the continued acceptance without objection of instalments, all defective in the same particular, would justify belief that such instalments might properly be given

realty was sold in monthly installments at regular stated periods. It was held that the acceptance by the vendor from the beginning of payments not made according to the contract but irregularly as to time and amount, the purchaser being at all times in arrears, was a waiver of the forfeiture clause, which could not be revived, except on notice to the purchasers that if they did not pay the balance due within a reasonable time specified the forfeiture would then be exercised."

McKenna v. Vernon, 258 Pa. 18, 101 Atl. 919. Cf. Fort Orange Barbering Co. v. New Haven Hotel Co., 92 Conn. 144, 101 Atl. 505.

36 Taylor v. Goelet, 208 N. Y. 253, 258, 101 N. E. 867, Ann. Cas. 1914 D. 284. See also Pipe & Contractors' Supply Co. v. Mason & Hanger Co.,

181 N. Y. App. Div. 317, 168 N. Y. S. 740; Miller v. Ungerer (N. Y. App. Div.), 176 N. Y. S. 850. If such notice is given and not complied with it makes a final breach of contract. Schultz v. Glickstein, 168 N. Y. S. 490.

37 General Electric Co. v. Chattanooga Coal & I. Corp., 241 Fed. 38, 41, 154 C. C. A. 38.

38 Consolidated Nat. Bank v. Giroux, 18 Ariz. 253, 158 Pac. 451; Barnette Sawmill Co. v. Fort Harrison Lumber Co., 126 La. 75, 52 So. 222; American Pail Co. v. Oakes, 64 Mo. App. 235. See also Van Valkenburgh v. Gregg, 45 Neb. 654, 63 N. W. 949; Bradley Currier Co. v. Bernz, 55 N. J. Eq. 10, 35 Atl. 832; Gardner v. Clark, 21 N. Y. 399; Gibney & Co. v. Arlington Brewery Co., 112 Va. 117, 70 S. E. 485.

and would be accepted in the future. Even so, however, if the refusal of a subsequent tender of defective goods and demand of strict performance imposed no additional hardship on the seller in procuring appropriate goods or in disposing of the defective ones already procured, the buyer might take this course, for it must be remembered that the permission implied from conduct like that expressed in words, may be withdrawn at any time before the permission has been acted upon. 39 It should also be observed that assent to continue performance of the contract does not necessarily include an agreement to accept the deficient performance of the other party as a complete discharge of his obligation. 40

§ 742. Whether stating one ground of defence discharges other grounds.

Where a promisor has two or more reasons which may perhaps entitle him to refuse to perform his promise, and these reasons are based on facts or defaults which it is no longer possible to change or correct, if he bases a refusal to perform when demand is made upon him on one of the reasons he is often said to have waived the other. It is obvious this is not a case of election. If the promisor gives up either of his defences he is making a present to that extent to the other party, for he might perfectly well have insisted upon both defences. Though some courts hold that a defence may be effectively surrendered even if the surrender is supported neither by promissory estoppel nor consideration, and all courts on one theory or another give effect to some promises which bring about this result, yet surely such a promise if not expressed in words, should at least be clearly implied in fact, if such a consequence is to follow.

41

When an insurer knowing that the insured in violation of two conditions in his policy has encumbered the premises and has taken other insurance, says "I wont pay the insurance because

39 See extract from opinion in Stevinson v. Joy, 164 Cal. 279, 128 Pac. 751, supra, n. 51. Also Panoutsos v. Raymond Hadley Corp., [1917] 1 K. B. 767, 2 K. B. 473, and paragraph 8 of the opinion in Scott v. Hubbard, 67

Oreg. 498, 136 Pac. 653, and supra, § 689.

40 See supra, § 700.

41 E. g., promises to pay debts barred by the Statute of Limitations or by a discharge in bankruptcy.

you have encumbered the property," it seems almost grotesque to suggest that he implies in fact thereby the added promise, "I promise to pay the policy if you have not encumbered the property or, if such encumbrance is not a legal defence." It is also to be observed that even if a promise can be implied in fact to give up other defences than the one specified, such a promise unsupported by consideration or promissory estoppel can certainly have no validity unless the promisor was aware of all the facts. It is not enough that he ight have known had he not been careless.42 On the other hand, there is frequently a promissory estoppel precluding the assertion of other defences after refusal has been made for a specific reason. It is due to a confusion, under the general term of waiver, of cases of this sort with cases where neither consideration nor estoppel exists which has led to the general statement frequently made that refusal to perform on one ground waives all other objection. 43 The fact that litigation has been begun may have a bearing on the existence of an estoppel.14

"See supra, § 697.

"Estoppel, however inadequately established in some cases, is recognized as the essential basis of the doctrine. Towle v. Ionia F. Ins. Co., 91 Mich. 219, 51 N. W. 987; Brink v. Hanover F. Ins. Co., 80 N. Y. 108, 113; McCormick v. Royal Ins. Co., 163 Pa. 184, 29 Atl. 747. In Bates v. Cashman, 230 Mass. 167, 119 N. E. 663, 664, the court said: "While of course one cannot fail in good faith in presenting his reasons as to his conduct touching a controversy he is not prevented from relying upon one good defence among others urged simply because he has not always put it forward, when it does not appear that he has acted dishonestly or that the other party has been misled to his harm, or that he is estopped on any other ground. See in this connection Randall v. Peerless Motor Car Co., 212 Mass. 352, 376, 99 N. E. 221."

"In Re McCarthy, 96 U. S. 258, 24 L. Ed. 693, Swayne, J., said:

"Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of the law." This passage has been quoted with approval or similar statements made in Polson Logging Co. v. Neumeyer, 229 Fed. 705, 708, 144 C. C. A. 115; Ward v. Queen City Fire Ins. Co., 69 Ore. 347, 138 Pac. 1067, 1068; Haney v. Hatfield, 241 Pa. 413, 88 Atl. 680, and in Banco De Sonora v. Bankers' Mutual Casualty Co. (Ia.), 95 N. W. 232, 236, citing in further support of the proposition, Power v. Monitor Ins. Co., 121 Mich. 364, 80 N. W. 111; Continental Ins. Co. v. Waugh, 60 Neb. 348, 83 N. W. 81; Gould v. Banks, 8 Wend. 562, 24 Am. Dec. 90, and other decisions.

§ 743. When refusing tender or demand on one ground precludes setting up other reasons.

The situation must be sharply distinguished where, at the time refusal to perform is made, whatever reasons there may be which justify refusal, they are remediable. In such a case the promisee if apprized of the reasons justifying refusal would perhaps remedy them. The assertion by the promisor of only one ground of refusal may naturally lead the promisor to infer either that his tender is in other respects satisfactory, or that if not, it is useless to perfect the performance in other respects than that which has been specified. If, therefore, relying on these natural inferences the promisee fails to perfect his tender until it has become too late to do so, he may nevertheless recover if the objection specified is unfounded. On principle, however, it is always a question of fact whether the specification of a single reason operated as a deception which being relied on prevented the promisee from performing fully, as he would otherwise have done. Thus where under a contract to convey real estate, a conveyance is tendered on the law day, which is insufficient because of a remediable matter, a refusal to receive it on one ground precludes setting up another objection in a suit based on the refusal to accept the deed.45 The principle is the same where money which is not legal tender is tendered in the fulfilment of an obligation. In a leading case it is said: "If you objected expressly on the ground of the quality of the tender, it would have given the party the opportunity of getting other money and making a good and valid tender; but by not doing so and claiming a larger sum, you delude him." 46 Similarly if a condition is attached to a tender but

45 Flint v. Woodin, 9 Hare, 618, 622; Lathrop v. O'Brien, 57 Minn. 175, 58 N. W. 987; Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287. See also Hoover v. Wolfe, 167 Cal. 337, 139 Pac. 794; Paisley v. Wills, 18 Ont. App. 210. But see Holdsworth v. Tucker, 143 Mass. 369, 9 N. E. 764. In Lathrop v. O'Brien, supra, the court stated as an essential feature of the case that the objection "if made at the time, could have been easily remedied by the

plaintiff." So in Higgins v. Eagleton, supra, the court said the defendant could not raise a new objection "where, as in this case, it was one which could have been obviated by the defendant;" and this is repeated in Miller v. Ungerer (N. Y. App. D.), 176 N. Y. S. 850.

46 Polglass v. Oliver, 2 C. & J. 15. And see infra, § 1819. In Iowa, it has has been said: "Under the provision of our statute in relation to tender, the party to whom it is made must make