the benefit of the respective parties, the parties may at any time by mutual agreement waive or surrender part or all of their respective rights. One party alone, to whom the performance of some obligation is owing by the other, may also waive or surrender the performance of that obligation either entirely, or in respect of the time, place, manner or extent of its fulfillment. When both parties mutually waive their rights, the surrender by one will furnish a sufficient consideration for the surrender by the other. But where one party alone is to waive his right, there must either be some new consideration for it, or some circumstance working an estoppel against him. § 1071. Elements of waiver.- A waiver is the voluntary and intentional relinquishment of a known right. It "implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon." To constitute a waiver, therefore, the acts relied upon must have been intentionally done with knowledge of the facts, and the party acting must have been in such a situation of freedom to choose that his relinquishment can fairly be said to have been voluntary. What one does in a dilemma, forced upon him by the default of the other, cannot be counted upon as a waiver.1 § 1072. Mere silence not a waiver.- The mere fact that one to whom performance is due keeps silent respecting the breach does not necessarily constitute a waiver of it. There may be nothing to say, and "mere silence does not amount to a waiver of the performance of a condition unless, indeed, in cases where such silence is inconsistent with any other explanation." 1 Bryant v. Thesing (1895), 46 Neb. 244, 64 N. W. R. 967. 2 See Ripley v. Ætna Ins. Co. (1864), 30 N. Y. 136, 164, 86 Am. Dec. 362; Belknap v. Bender (1878), 75 N. Y. 446, 453, 31 Am. R. 476. 3 Warren v. Crane (1883), 50 Mich. 800, 15 N. W. R. 465. 4Industrial Works v. Mitchell (1897), 114 Mich. 29, 72 N. W. R. 25; Ramsey v. Tully, 12 Ill. App. 463; Northwestern Cordage Co. v. Rice (1896), 5 N. Dak. 432, 67 N. W. R. 298, 57 Am. St. R. 563. 5 Per Dillon, J., in Burlington, etc. R. Co. v. Boestler (1864), 15 Iowa, 555 § 1073. Mere leniency no waiver.- So mere leniency on the part of him to whom the act is due mere voluntary indulgence in not insisting at once upon performance — does not constitute a waiver. "It cannot be justly construed as a permanent waiver [of the default], or as implying any agreement to waive it, or to continue the same indulgence for the time to come."1 § 1074. Friendly attempts at adjustment no waiver. Again, the mere fact that the party entitled has attempted by offers or proposals, not accepted, to adjust the matter, or make new arrangements, or vary the terms, does not constitute a waiver of the default or rob him of any of the rights which have accrued to him thereby under the contract.2 § 1075. Acceptance of part performance as waiver.-" Although conditions precedent must be performed, and a partial performance is not sufficient," it is said, "yet when a con [citing Gray v. Blanchard, 8 Pick. invoked. 1 Wilkinson v. Blount Mfg. Co. (1897), 169 Mass. 374, 47 N. E. R. 1020 [citing Thompson v. Knickerbocker Ins. Co., 104 U. S. 252, 259; Bleecker v. Smith, 13 Wend. 530, 534; Williams v. Dakin, 22 Wend. 201, 209; Hunter v. Daniel, 4 Hare, 420; Muston v. Gladwin, 6 Q. B. 953; Flower v. Peck, 1 B. & A. 428]. In Royal v. Aultman-Taylor Co. (1889), 116 Ind. 424, 19 N. E. R. 202, 2 L. R. A. 526, it is said: "While a condition may be waived by a party who has the right to avail himself of it, mere indulgence or silent acquiescence in the failure to perform is never construed into a waiver unless some element of estoppel can be Carbon Block Coal Co. v. 101 Ind. 115, and cases 2 Riendeau v. Bullock (1895), 147 N. Y. 269, 41 N. E. R. 561. Here plaintiff contracted to sell to defendant all his ice then stored on a canal, to be delivered on canal boats during June and July. For an advance of twenty-five cents per ton the time was extended through August. Considerable ice remained at the end of August, and plaintiff wrote defendant proposing to charge only twentyfive cents extra for ice taken after September 10th. Defendant refused this, and told plaintiff to sell elsewhere. Held, that the offer was no waiver of the terms of the contract. 3 Wiley v. Athol (1890), 150 Mass. 426, 23 N. E. R. 311 [citing White v. Beeton, 7 H. & N. 42; Behn v. Burness, 3 B. & S. 751; Jonassohn v. Young, 4 B. & S. 296; Pust v. Dowie, tract has been performed in a substantial part, and the other party has voluntarily accepted and received the benefit of the part performance, knowing that the contract was not being fully performed, the latter may thereby be precluded from relying upon the performance of the residue as a condition precedent to his liability to pay for what he has received, and may be compelled to rely upon his claim for damages in respect of the defective performance." § 1076.. So, where the question was as to the liability of the buyers to pay for a portion of a quantity of glass contracted for, where the residue was not delivered, the court said: "While the defendants were not bound to accept a delivery of a portion of the boxes of glass, and had a right to reject or retain the same as they saw fit, yet if they elected to receive the part delivered, appropriated the same to their own use, and by their acts evinced that they waived this condition, they became liable to pay for what was actually delivered. This rule is established in numerous reported cases, and the question of waiver is frequently one of fact to be determined by the circumstances and the evidence."1 § 1077. Statement of some objections as a waiver of others. While a party is not ordinarily obliged to insist upon all the defenses which he has, or to specify all the particulars in respect to which he claims default, still, when a formal category of objections is presented, it is to be expected that those will be mentioned upon which the party insists. "The principle is plain, and needs no argument in support of it, that if a particular objection is taken to the performance and the party is silent as to all others, they are deemed to be waived. This 5 B. & S. 20; Carter v. Scargill, L. R. 10 Q. B. 564; Mill Dam Foundery v. Hovey, 21 Pick.. (Mass.) 417, 448]. 1 Avery v. Willson (1880), 81 N. Y. 341, 37 Am. R. 503. 2 Thus, in Bryant v. Thesing (1895), 46 Neb. 244, 64 N. W. R. 967, it was held that the fact that the buyer refused the goods, when tendered, on the ground that the contract had been canceled, did not preclude him from defending on the ground that the goods tendered did not conform to the description in the contract. waiver of all other objections is not only justly inferable generally, but is especially so when the deliberateness with which the objections are stated leaves it to be implied that there has been a consideration of the matter, and a result reached upon particular grounds." § 1078. Voluntary and unconditional acceptance of deficient performance a waiver.-On the other hand, where a party with full knowledge of the facts voluntarily accepts and acquiesces in a deficient performance - whether the defect be that the goods are not of the kind agreed upon, or are not delivered at the time or place, or in the manner, amount or condition specified — under circumstances indicating to the party in default that no further performance will be demanded, a waiver of the defect may be inferred.2 1 Littlejohn v. Shaw (1899), 159 N. Y. 188, 53 N. E. R. 810. See also Smith v. Pettee (1887), 70 N. Y. 13, 17. 2 Thus, where one who has contracted for a new machine voluntary accepts one which he knows has been used, he waives objection to it on that ground. Aultman-Taylor Mach. Co. v. Ridenour (1896), 96 Iowa, 638, 65 N. W. R. 980. Many other similar cases are cited in the chapter on Acceptance, post, § 1363. In Brady v. Cassidy (1895), 145 N. Y. 171, 39 N. E. R. 814, it appeared that a contract of sale was made of "the entire manufactured stock, in good condition, now on hand at foundry and store-room. As a fact part of the stock had been previously sold to others. At the time of the sale the purchasers took only that part of the stock not sold to others, acquiesced in the disposal of the remainder to such others, and assisted in its delivery to them. Held, that oral evidence of this conduct of the purchaser is admissible, and that such conduct constitutes a waiver of full performance of the contract. In German Savings Inst. v. De La Vergne Co. (1895), 36 U. S. App. 184, 17 C. C. A. 34, 70 Fed. R. 146, a corporation executed a bill of sale of all its property to the defendant, the De La Vergne Co., in consideration for which the latter agreed to issue $100,000 of capital stock in the defendant company to the stockholders of the vendor corporation. Besides its property, the stock of the vendor was to be assigned to the defendant. The property was all turned over, but one-fourth of the stock certificates were assigned by the executors of a deceased owner without authority, and could not be conveyed, but there was nothing to show that they were of any value. Held that, as the defendant had obtained and continued to hold all the substantial benefits of the contract, he could not refuse to issue the $100,000 of stock on the ground of failure to obtain all the stock cer $1079. The difficulty is in determining whether the acceptance is thus voluntary and unconditional. The party may have been put in such a situation that there is nothing left to do but to accept the performance tendered and thus make the best of a bad matter; and where this is the case his acceptance is not necessarily to be deemed a waiver.1 tificates of the vendor corporation, nor on the ground that the instruments were not delivered in time, since this objection was not made until four months after their delivery. The delay was a waiver. 1 This is well stated in Ramsey v. Tully (1882), 12 Ill. App. 463, 471, as follows: "The question of waiver is largely one of intention, each case depending upon its own special facts. A voluntary acceptance, without objection, of a purchased article, where there are no compulsory circumstances necessitating such acceptance, and no special damages to be occasioned thereby, may properly be regarded as evincing an intention to waive the time specified for delivery. But where the circumstances are such as to show that the acceptance can, in no just sense, be regarded as voluntary, but rather as compulsory, the presumption of an intention to waive does not arise. Appellants were engaged in the construction of a public work, for the completion of which they had given bonds. The work was but half finished, and they could obtain brick of the requisite quality nowhere but from appellees. They notified them of their necessities and requested them to comply with their contract. To say that an acceptance, after the time for delivery had passed, under such circumstances, was voluntary in such sense as to evince an intention to waive their right to claim damages for the delay, would be a perversion of language. They did the best they could in the situation in which they found themselves placed." In Northwestern Cordage Co. v. Rice (1896), 5 N. Dak. 432, 67 N. W. R. 298, 57 Am. St. R. 563, it is said: "It often happens that the purchaser is so situated that it is necessary for him to accept the article in its defective condition. It would indeed be singular that one who had placed him in this position should be allowed to escape liability on his contract of warranty." To like effect: Hansen v. Kirtly (1861), 11 Iowa, 565; Cox v. Long (1873), 69 N. C. 7; Cincinnati v. Cameron (1878), 33 Ohio St. 336; Ketchum v. Wells (1865), 19 Wis. 26; Flannery v. Rohrmayer (1879), 46 Conn. 558, 33 Am. R. 36: Ruff v. Rinaldo (1873), 55 N. Y. 664; Haven v. Wakefield (1866), 39 Ill. 509; Waterman v. Clark (1875), 76 Ill. 428; Tobey v. Price (1874), 75 Ill. 645. In Industrial Works v. Mitchell (1897), 114 Mich. 29, 72 N. W. R. 25, the plaintiffs agreed to furnish and deliver certain dredge machinery by March 1, 1891. It was not delivered until March 31st, and was so badly constructed that it required fifty-six days more to get it in working order. On March 4th a cash payment of $2,000 was made, and on April 25th. almost thirty days before the machinery was ready for work, at the demand of the seller the defendant |