THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
C. L BENSEL
LAW ..PR
21 0 DOUGLAS 3LDG.
MU 44' uEg
A TREATISE
ON
THE LAW OF WAIVER
BY
RENZO D. BOWERS
OF THE BOSWELL NEW MEXICO BAB
PORTLAND, OREGON:
GEO. A. BATESON & CO., INC.,
1914
Copyright 1914
By
Renzo D. Bowers.
T
TO
MY WIFE
FOE LOVING ASSISTANCE
AND TO MY MOTHEE FOE KIND EN-
OOUEAOEMENT, AND THUS TO THE TWO
MOST DEAE IN ALL THE WOELD, AS A
MEMENTO OF APPEECIATION, THIS
WOEK IS AFFECTIONATELY
INSCRIBED
B. D. B.
G6v65G
CHAPTER HEADINGS
LIST OF CHAPTER HEADINGS.
Chapter 1. Preliminary.
Chapter 2. Contracts.
Chapter 3. Bills and Notes.
Chapter 4. Mortgages.
Chapter 5. Liens.
Chapter 6. Statute of Frauds.
Chapter 7. Exemptions.
Chapter 8. Privileged Communications.
Chapter 9. Redemption.
Chapter 10. Statute of Limitations.
Chapter 11. Corporations.
Chapter 12. Insurance.
Chapter 13. Torts.
Chapter 14. Pleading.
Chapter 15. Criminal Practice.
Chapter 16. Civil Practice.
TABLE OF CONTENTS
CHAPTER 1.
PRELIMINARY:
iSec. 1. DEFINITION.
Sec. &. WHO MAY WAIVE RIGHTS:
A. Agents.
B. Attorneys.
C. Infants.
CONTRACTS:
Sec. 12. WAIVER OiF THE MANNER OF PERFORM-
ANCE:
A. By Acceptance After Breach.
B. By (Proceeding Under the Contract After a
Breach.
C. By Preventing the Other Party From Per-
forming.
D. Condition for Payment for Goods on De-
livery.
Sec. 36. WAIVER OF TIME FIXEID FOR IPERiFOIRM-
ANOE1:
A. Performance Prevented By the Promissee.
B. Time Held Not Waived.
Sec. 46. WAIVER OiF TENDER, OF PERFORMANCE:
A. General Rules.
B. Acts Held Not A Waiver.
Sec. 62. WAIVER OF FORFEITURES :
A. General Rules.
B. In Deeds and Land Contracts.
C. In Leases.
Sec. 6i5. WAIVER OF THE RIGHT TO .RESCIND.
CHAPTER 3.
BILLS AND NOTES:
Sec. 72. IN GENERAL.
Sec. 74. WAIVER CONTAINED IN THE INSTRUMENT:
A. On Face of Instrument.
DB. Waiver in Indorsement.
8 THE LAW OF WAIVES
Bee. 76. ORAL WAIVER.
A. Concurrently With Indorsement.
B. Subsequently To Indorsement, But Prior
To Maturity.
C. At Maturity.
D. After Maturity.
Bee. 81. WAIVERS AFTER DEFAULT:
A. By Promise to Pay —
(1) Sufficiency of promise.
(2) Conditional promise.
(3) Insufficient promises.
B. Knowledge Essential To Promise —
(1) Whether promise presumes knowl-
edge.
(2) Knowledge of legal effect of hold-
er's default.
C. Payment or Part Payment As Waiver.
D. Receipt By Indorser Of Money, Property
Or Other Security As Waiver.
E. Waiver By Conduct.
Sec. 105. CONSIDERATION FOR WAIVER:
Sec. 109. WHETHER WAIVER IS WITHIN STATUTE
OF FRAUDS.
Sec. 110. EXTENT OF WAIVER:
CHAPTER 4.
MORTGAGES:
Sec. 112. CHATTEL MORTGAGES:
A. Waiver of The Lien By Attachment.
B. By Execution.
C. By Other Acts of The Mortgagee.
Bee. 118. RIEAL ESTATE MORTG AGES :
A. Waiver Of The Lien —
(1) By suit or judgment on note.
(2) Levy of execution on mortgaged
premises to satisfy mortgage
debt.
(3) Taking other security; attaching
mortgaged property; etc.
(4) Waiver of priority.
B. Waiver In Foreclosures —
(1) Breach of mortgage conditions—
(a) Non-payment of interest.
TABLE OF CONTENTS 9
(b) Non-payment of taxes, in-
surance or installments of
principal.
(2) Waiver of entry to foreclose.
(8) Waiver of foreclosure sale.
(4) Waiver of right to set aside sale — •
(a) By laches or delay.
(fc) Effect of redemption.
(c) Other conduct constituting
waiver.
CHAPTER 5.
LIENS:
Sec. 148. PROMISSORY LIENS:
A. Carriers.
B. Inn-Keepers.
C. Liverymen and Agisters.
Sec. 155. ATTORNEY'S LIENS.
Sec. 157. MECHANIC'S LIENS.
A. In General.
B. By Taking Debtor's Note.
C. By Drawing Draft.
D. By Taking Mortgage.
E. By Taking Collateral Security.
F. By Personal Judgment, Attachment, Or Ex-
ecution.
G. Miscellaneous Waivers.
Sec. 172. VENDOR'S LIENS.
CHAPTER 6.
STATUTE OF FRAUDS:
Sec. 1715. IN GENERAL.
Sec. 177. HOW WAIV7DR OF THE STATUTE MAY OC-
CUiR.
Sec. 181. EFFEICT OF WAIVING THE STATUTE.
CHAPTER 7.
EXEMPTIONS:
Sec. 182. WAflVETl IN GENERAL.
Sec. 183. BY CONCUiRREOSTT AGREEMENT.
Sec. 18'5. BY SUBSEQUENT CONDUCT.
Sec. 187. 'HOMESTEAD
10 THE LAW OF WAIVEB
CHAPTER 8.
PRIVSLEXJiED OOM'MUNIOATIONS :
Sec. 190. IN GHE2N1EJRA1L.
Sec. 191. ATTORNEY AND OLTEiNT.
See. 186. PHYSICIAN AND PATIENT.
A. Who May Waive Privilege.
B. What Amounts To Waiver.
Sec. 198. HUSBAND AND WIFR.
CHAPTER 9.
REDEMPTION:
Bee. 199. UNDER MORTGAGES:
A. By Concurrent Agreement —
(1) In mortgage.
(2) By separate instrument.
B. By Subsequent Agreement.
C. By Laches.
D. By Other Conduct.
CHAPTER 10.
STATUTE OF LIMITATIONS:
Sec. 21i5. <PCREiLIMINA/RY.
Sec. 219. ACKNOWLEDGMENT OP DEBT.
Sec. 2*22. NEW PROMISE' TO BAY.
A. Part Payment.
Bee. 22-5. FAILURE TO PUEAD THE STATUTE.
A. In Civil Actions.
B. In Criminal Cases.
CHAPTER 11.
CORPORATIONS:
6ec. 227. CONDITIONS AND IRREGULARITIES IN
(SUBSCRIPTIONS:
A. Conditional Subscriptions —
(1) In general.
(2) That all stock be subscribed.
(3) Miscellaneous conditions.
B. Irregularities In Subscriptions —
(1) In general.
(2) Fraud and misrepresentation.
Bee. 239. BY-LAWS AND OOlRPOfRATE MEETINGS:'
TABLE or CONTENTS 11
A. [By-laws.
B. Corporate Meetings.
Sec. 24.5. ASSESSMENTS AND ' FORFEITURES OF
SHARES.
A. Waiver As Applied To Assessments.
B. Forfeiture of iShares.
Sec. 249. TRANSFER OF STOCK AND LJlEiN ON
SHARES:
A. Transfer of Stock.
<B. Waiver Of Lien On Shares.
Bee. 2'58. RIGHT OF STATE TO CANOEL CHARTER.
CHAPTER 12.
INSURANCE:
Sec. 262. RELATION BETWEEN INSURER AND ITS
AGENTS:
A. In General.
B. Who Are Agents Who May Waive Rights.
C. Clerks.
Sec, 274. WHAT MAY BE WAIVED; WHAT AMOUNTS
TO A WAIVER:
A. Acts Prohibited By Charter.
B. Conditions —
(1) Breach of conditions prior to de-
livery of policy —
(a) Condition as to title.
(b) Condition as to encum-
'brances.
;(c) Condition as to vacancy.
(d) Condition as to use of
premises.
(e) Condition as to prior insur-
ance.
(f) Condition as to Iron-safe
clause.
(2) Breach of condition subsequent to
delivery of policy —
(a) Change in title.
(b) Vacancy.
(c) Encumlbrances.
(d) Mis-use of premises.
(e) Additional Insurance.
C. Payment Of Premium —
,(1) Before delivery of policy —
12 THE LAW OP WAIVES
(a) In general.
(2) After delivery of policy —
(a) Theory that payment at
maturity may be waived.
(b) By custom.
(3) Waiver of cash payment.
Bee. 3115. FORFEITURES:
A. In General.
B. Indorsement of Waiver on Policy.
Sec. 319. NOTICE OF DOSS:
A. Silence Of Insurer Or Failure To Object
Not a Waiver.
B. Contrary View.
C. Distinction Between Notice Out of Time
And Notice Defective In Form.
Sec. 324. PROOFS OF LOSS:
A. Failure To File Any Proofs —
(1) In general.
(2) By denial of liability.
(3) Refusal to pay on other grounds.
(4) By other acts or conduct.
B. Defective Proofs Within Time Required—
(1) No Objection By Insurer.
(2) Objection on other grounds.
C. Not Filed In Time.
D. Who May Waive Proofs.
E. Whether Proofs May Be Waived Orally—
(1) In the negative.
(2) In the affirmative.
Sec. 339. ARBITRATION.
Sec. 341. LIMITATION OF TIM'S TO SUE:
A. What Constitutes A Waiver.
03. Acts Not A Waiver.
CHAPTER 13.
TOlRTS:
fiec. 343. IN GENERAL.
(Bee. 345. FRAUD AND FRAUDULENT RffiPRiEBElNTA-
TJJONS.
Sec. 348. OONVEfR/SlIOfN.
Sec. 361. EXPECT OF WAIVER.
TABLE OF CONTEXTS 13
CHAITER 14.
PLEADING:
Sec. 3:52. WAIVER BY APPEARANCB:
A. Defects In Process —
(1) Special appearance.
(2) Exemption from service.
B. Jurisdiction —
(1) Over subject-matter.
Bee. 370. DEFECTS IN COMPLAINT:
A. In General.
B. By Answering.
C. Mis-joinder —
(1) Of parties.
(2) Of causes of action.
D. incapacity Of Plaintiff.
39. Waiver Of Error In Over-ruling Demurrer.
F. Objections To Venue.
Sec. 382. IN ATTACHMENTS AND GARNISHMENTS:
A. Defects In Affidavit.
B. Defects In Writ.
C. Waiver Of Attachment Lien.
D. Waiver By Garnishee.
Sec. 386. IN CRIMINAL PROOEEOINGS :
A. Jurisdiction.
B. No Offense Charged In Indictment.
C. Former Jeopardy.
CHAPTER 15.
CRIMINAL PRACTICE:
Sec. 393. IN GENERAL.
Sec. 394. BIGHT TO JURY TRIAL.
•Sec. 396. JURY OF FEWER THAN TWE'LVH.
A. In Felonies.
B. In Misdemeanors.
6«c. 399. WAIVER OF PRIVILEGE PROM SELF^Cfclltt-
NATION.
Sec. 403. RIGHT OF ACCUSED TO BE PRESENT AT
TRIAL.
A. Crimes Less Than Capital.
IB. Capital Offenses.
C. Who May Waive The Right.
14 THE LAW OF WAIVEB
CHAPTER 16.
CIVIL. PRACTICE:
Subdivision 1:
Sec. 407. OBJECTION TO SPECIAL JUDGE.
Sec. 408. OBJECTIONS TO JUROJEtS:
A. Panel.
B. Poll.
fiec. 412. RIGHT TO JURY TRIAL:
A. Number Of Jurors.
Sec. 416. WITNESSES:
A. Oath.
B. Depositions.
C. Competency.
D. Self-crimination —
(1) Time to claim privilege.
(2) Privilege must be claimed.
(3) Extent of waiver.
Subdivision 2:
TRIAL PRACTICE:
Sec. 426. IN GENERAL.
Sec. 428. OBJECTIONS TO EVIDENCE:
A. Admission —
(1) Time to object.
(2) Specifying evidence and ground of
objection —
(a) In general,
(•b) Incompetency.
(c) Incompetent, irrelevant and
immaterial.
B. Variance.
Sec. 441. EXCEPTIONS TO RULINGS OF THE COURT:
A. In General.
B. To Exclusion Of Evidence.
C. To Admission Of Evidence.
fiec. 447. WAIVE/R AS TO NON-SUITS,
gee. 452. DEMURRER TO THE EVIDEiNCE.
flee. 455. DIRECTING VERDICT.
flee. 456. INSTRUCTIONS:
A. In General.
B. Instructions Given —
(1) Waiver of written instructions.
(2) Exceptions.
C. Instructions Refused —
(1) Exceptions to refusal to instruct.
TABLE OF CONTENTS 15
D. Time For Exceptions.
Sec. 469. VERDICT.
See. 470. FINDINGS OF FACT.
Sec. 471. NEW TRIAL.
Sec. 473. WAIViDR IN APPELLATE PRACTICE:
A. Waiver Of Right To Appeal —
(1) From consent judgments.
(2) By paying judgment.
(3) By accepting benefits of judgment.
B. Notice Of Appeal.
PREFACE 17
PREFACE.
The only excuse requisite to be advanced on the
part of a writer of a book on any subject of the law
is a belief that the work will assist the members
of a busy profession in sifting the golden grains
from the masses of foreign material in which they
are embedded, and render lighter and speedier the
task of fitting to the facts of any particular case the
principles of law by which they are to be governed.
Without offering it as an excuse therefor, I submit
this reason as a basis for presenting this volume to
the profession.
The law of Waiver has been consigned to a hap-
hazard growth, the principles of which have in some
measure or to some extent insinuated themselves
into every subject of the law but have received no
recognition as a separate and distinct subject in
themselves. Yet no subject deserves more and re-
ceives less consideration. Its principles are far-
reaching. The instances of its application are multi-
tudinous. And the fact that no work is extant deal-
ing with the subject and exemplifying its ramifica-
tions of the law is remarkable when we note the
tomes and tomes at large dealing with nearly every
other individual subject of the law.
The plan I have sought to follow has been -to
present a distinct arrangement of subjects, giving
to each a chapter, with the object of attaining a
method of ready reference. For each principle an-
nounced, I have sought to submit authorities bear-
ing directly upon the facts as given, with authorities
touching in some manner the general principle in-
19 THE LAW OF WAIVES
volved. Needless to say, I have despaired of citing
every decided case on the law of Waiver, although
some five thousand are noted in this volume.
Where inharmony exists among the courts as
to any question discussed, I have endeavored to
present the several holdings showing the conflicting
views, together with my own views as to the better
rules and the reasons inducing same. In some in-
stances I have ventured to disagree with principles
that are firmly established by judicial decision, rec-
ognizing the fact, however, that such opinion carries
only the effect of inducing the practitioner to pause
and deliberate as to whether such established prin-
ciples are, in fact, well founded.
I have gone to considerable labor in referring
the citations to the various publications in which the
cases are reported that time and work to the practi-
tioner may be economized. That errors — perhaps
many of them — have crept in, it would be vain to
deny, but notwithstanding imperfections, it is
hoped that some assistance may be received from
these pages; and upon such considerations, the
work is consigned to the mercies of an ever-chari-
table profession.
Eoswell, New Mexico, E. D. B.
January 15, 1914.
PRELIMINARY 19
CHAPTER 1.
PBJBILIMINAiRY.
Section
1. DEFINITION 1
2. WHO MAY WAI VIE iRIOHTS —
A. Aigents 6
B. Attorneys 6
C. Infants 7
1. DEFINITION : Sec. 1. Waiver is the vol-
untary abandonment or surrender, by a capable per-
son, of a right known by him to exist, with the in-
tent that such right 'Shall be surrendered and such
person forever deprived of its benefit. The right
abandoned or surrendered may be one arising from
contract, or it may be conferred 'by operation of law;
and, whether the one or the other, if the person
possessing such right so express himself by agree-
ment or so conduct himself in relation to the right
as to manifest an intention to forego its benefits, he
will he held to have waived the right and cannot
later insist upon it. Or, as it has been said, Waiver
is a voluntary relinquishment or renunciation of
some right, a foregoing or giving up of some benefit
or advantage, which, but for such waiver, a party
would have enjoyed. It may be proved by express
declarations; or by acts and declarations manifest-
ing an intent and purpose not to claim the supposed
advantage; or by a course of acts and conduct, or
by so neglecting and failing to act, as to induce the
belief that it was his intention and purpose to
waive.1
1. Jtorow v. KHi*. 16 Gray <.*'*. (.Mau.).
20 THE LAW OF WAIVER
Sec. 2. It may thus be seen that there are four
components of a complete and valid waiver, namely:
A Person, sui juris; an Existing Eight; Knowledge
on the part of the Person of the Existing Eight ; arid
an Intention of the Person having such Knowledge
to surrender the Eight. A waiver need not be the
express avowal of an intention to surrender a right ;
the essence of the act being voluntary choice, it may
be shown by conduct fairly and justly leading an-
other to believe that a right has been relinquished, or
by the doing or forbearing to do something incon-
sistent with the existence of a right or an intention
to rely upon it. The intention, therefore, though
being a necessary ingredient, may be inferred from
conduct or from the negligence of the party to whom
it is imputed. Still, a secret purpose is not enough
to create a waiver, nor is the mere silence of one who
is under no duty to speak; there must in every in-
stance 'be either language duly expressing the intent,
or conduct clearly and reasonably exemplifying it.
Sec. 3. While it is the general rule that in
order for the acts or words of a person to be bind-
ing upon him as a waiver he must have acted or
spoken with full knowledge of the existence of
facts and circumstances attending the creation and
continuance of the right he is alleged to have
waived, still any action, though taken in real ignor-
ance of a right, will be held a waiver where knowl-
edge is presumed or imputed to the party from the
circumstances of the case, or by virtue of law, or
where it is his duty to inform himself and he has
failed to do so.
Sec. 4. The doctrine of Waiver has in every
case one of three principles for its foundation — the
PRELIMINARY 21
concurrence of the wills of the parties; a contrac-
tual relation created by law ; or estoppel induced by
conduct. In either of these methods of creating a
waiver, no consideration is essential to its complete-
ness or validity, unless, indeed, it be said that the
causing another to alter his position or to do some-
thing by reason of such waiver that he would not
otherwise have done is a consideration therefor.
But in some cases an executory promise to waive a
stipulation for a party's benefit is a mere license
which, unless some consideration be given therefor,
may be withdrawn at any time before it is acted
upon.
2. WHO MAY WAIVE RIGHTS.
A. AGENTS:— Sec. 5. The general princi-
ples governing the law of agency are applicable to
matters involving the law of waiver, and it is the
rule here that a waiver that may be made by a per-
son may be made by his: agent, except in certain
classes of matters involving personal privileges or
rights which can be waived only by the person enti-
tled to assert them, and always on the condition that
the agent attempting to waive a right belonging to
his principal shall have been duly authorized there-
unto. The instances in which the question of waiver
by an agent most frequently arises will be found in
a consideration of insurance contracts which will be
hereinafter treated at length under the title In-
surance.
B. ATTORNEYS:— Sec. 6. The power of
attorneys to waive rights of their clients depends
altogether upon the scope and condition of their
employment. An attorney once employed in a case
has full authority to deal with matters of practice
22 THE DAW OF WAIVER
and procedure in the action, and may waive any
right of his client therein and such waiver will be
as effectual as if made by the client in person.'
But the general rules of agency and the special rules
governing attorneys will not permit the latter to
dispense with matters or forego 'benefits to their
clients which do not legitimately fall within the cir-
cumference of their employment. Thus, to illus-
trate, a party anticipating that suit may be brought
against him, consults an attorney and employs him
to defend the suit when brought. This employment,
being simply as a representative in court after the
parties have been lawfully and regularly brought
there, would not confer upon the attorney authority
to waive issuance and service of process upon his
client and to enter an appearance in the case as if
the process had been properly issued and served.
To have power to make such a waiver, the attorney
must have special employment for that purpose.
And what is true of an employment such as men-
tioned is true of every other matter in which an at-
torney may act or be retained.
0. INFANTS :— Sec. 7. The ability of an in-
fant to waive rights belonging to him depends upon
the general principles governing his power to con-
tract or to exercise other privileges given 'by law to
persons of lawful age. And the law being that all
contracts of an infant, except certain reserved
classes, are, if not void, at least voidable, it follows
that as far as the law of waiver is concerned it has
to do with only his voidable contracts and such
3. No. Cent. Ry. Co. v. Rider, 45 Md. 24.
PRELIMINARY 23
civil rights as arise out of these, together with his
rights in any criminal proceeding against him which
he possess similarly with those of legal age.
Sec. 8. It is the general rule that the contracts
of an infant are not 'binding upon him, that he has
the right to disaffirm them if he desires to do so,
and may disaffirm before he comes to legal age or
within a reasonable time thereafter, the time in
some cases being fixed by statute. Like any other
voidaible contract, that of an infant, if not illegal, is
binding upon him until disaffirmed in some appro-
priate manner. What acts will and what will not
amount to a disaffirmance is a question concerning
which courts are not quite in harmony, and it is a
question with which we are not to deal here. The
point with which we are concerned is that the prin-
ciple upon which an infant, in whatever manner,
elects to treat his contract as valid and binding is one
of waiver, for thereby he waives the right to later
avoid the contract and he must abide 'by its terms.
But it is said that there can be no ratification dur-
ing minority, and it, therefore, follows that a waiver
of the right to avoid a contract on account of in-
fancy is, in fact, a waiver by a person sui juris and
not 'by an infant. Other questions of waiver by an
infant, not arising from contractual relations, must
be determined from a consideration of the power
of a guardian to waive rights belonging to his ward ;
although it is incumbent upon the infant, in some
instances, to take measures himself to protect his
rights or they will be held waived. Thus, in the
case of a judgment by default against an infant,
rendered after personal service of summons upon
him, while the judgment is voidable without the ap-
24 THE LAW OF WAIVBB
pointment of a guardian ad litem, the infant must
take steps to avoid it within a reasonable time after
attaining his majority or by his acquiescence he will
be held to have waived the right to avoid it."
Sec. 9. It may be stated as a general rule that
a guardian cannot waive any right belonging to his
ward to the detriment of the latter, ox without a
consideration. Thus, he camnot make a voluntary
release of a debt due his ward4, nor waive the secur-
ity for such debt5, nor an award favorable to his
ward" ; and he cannot waive the 'bar of the statute of
limitations which has already run7, nor release a
claim of his ward to an inheritance', nor waive no-
tice of proceedings in the settlement of an estate',
nor, in the trial of a case, can he waive the ward's
right to exclude an incompetent witness".
'Sec. 10. Further, a guardian has no power to
waive jurisdictional process for his ward and enter
an appearance for him without legal service of such
3. 10 Am. & Eng. Enc. L., 692-697.
Beckley v. Newcomb, 24 N. H. 359.
Eisenmenger v. Murphy, 43 N. W. 784. (Minn.)
In re Becker, 28 Hun 207.
Blake v. Douglass, 27 Ind. 416.
Sharp v. Robertson, 76 Ala. 343.
Brown, Jur., 113.
2 Freeman, Judgments, Art. 487.
4. Horine v. Horlne. 11 Mo. 649.
Freiberg v. De Lamar, 7 Tex. Civ. App. 263; 27 S. W. 151.
5. Blanvelt v. Van Winkle, 29 N. J. Eq. 111.
Dlbrell v. Smith, 40 Tex. 447.
«. Williams v. Mosely, 2 Fla. 304.
7. Clement v. Slgur, 29 La. Ann. 798.
8. Naeglin v. De Cordoba, 171 U. S. 638; 19 Sup. Ct. R. 35.
9. Wade v. Bridewell, 38 Miss. 420.
10. Hulnig v. Hulnlg, 32 111. App. 519.
PRELIMINARY 25
process upon his ward". The contrary of this has
been held in a case where there was no personal
service of summons upon the infant defendants but
their general guardian appeared and answered for
them. The court held this a sufficient appearance
to give jurisdiction over the persons of the infants13,
in effect saying that a general guardian has power
to waive service of process upon his ward. But we
doubt the safety of such doctrine, and find that the
preponderance of authorities and the weight of judi-
cial thinking is to the contrary14.
Sec. 11. Whatever the disagreement of the
courts as to the power of a guardian to waive per-
sonal service of summons upon an infant, they all
agree that an attorney has no suqh power". And it
is held that an attorney cannot enter the appearance
of a minor who has not been brought into court by
proper process15. But after the infant has been
11. Ha/wes on Jurisdiction, Sec. 231.
Ingersoll v. Mangam, 84 N. T. 622.
Greenman v. Harvey, 53 111. 386.
12. Smith v. McDonald, 42 Cal. 484.
And See: Simpson v. Belvin, 37 Tex. 674.
Wrisley v. Kenyon, 28 Vt. 6
13. Chambers v. Jones, 72 111. 275.
Abdil v. Abdil, 26 Ind. 287.
Young v. Young, 91 N. Car. 359.
Cormier v. De Valcourt, 33 La. Ann. 1168.
jfrazier v. Pankey, 31 Tenn. 75.
Above cases of appearance by guardian ad litem.
Haley v. Taylor, 39 Ark. 104.
Kans. City Etc. Ry. Co. v. Campbell, 62 Mo. 585.
Winston v. MoLendon, 42 Miss. 254.
Good v. Morley, 28 la. 188.
Gcnobles v. West, 23 S. Car. 154.
Shaefer v. Gates, 2 B. Mon. 453 (Ky.) ; 38 A. D. 164.
14. Evans v. Davies, 39 Ark. 235.
15. Bonnell v. Holt, 89 HI. 71.
De La Hunt v. Holderbaugh, 58 Ind. 285.
Gamache v. Prevost, 71 Mo. 84.
Somers v. Rogers, 26 Vt. 585.
Valentine v. Cooley, Meigs 613 (Tenn.) ; 33 A, D. 166.
26
properly brought into court, a guardian ad lit em ap-
pointed, and an attorney employed to represent the
interests of the infant, it is thought that an attorney
has the same power to waive matters of practice and
procedure that he would have were he representing
an adult; with always the condition circumscribing
the acts of anyone dealing with and representing
an infant — that such waiver shall be fairly and in
good faith made.
CONTRACTS 27
CHAPTER 2.
CONTRACTS.
Section
1. WAIVER OF THE MANNER OF PERFORMANCE—
A. By Acceptance After Breach 12
B. By Proceeding Under the Contract After a Breach. . 22
C. By Preventing The Other Party From Performing. .25
D. Condition For Payment For Goods on Delivery. . . .32
2. WAIVER OF TIME FIXED FOR PERFORMANCE. . .36
A. Performance Prevented By The Promisee 43
B. Time Held Not Waived 45
3. WAIVER OF TENDER OF PERFORMANCE—
A. General Rules 46
B. Acts Held Not A Waiver 51
4. WAIVER OF FORFEITURES—
A. General Rules 52
B. In Deeds and Land Contracts 56
C. In Leases 60
5. WAIVER OF THE RIGHT TO RESCIND 65
1. WAIVER OF THE MANNER OF PERFORMANCE.
A. BY ACCEPTANCE AFTEE BREACH :—
Sec. 12. It is a general rule that one who is entitled
to full performance of a contract by the other party
to it, by accepting the part performance offered, or
by accepting the article delivered as a compliance
with the contract, waives the right to object to a de-
ficiency in the performance or in the quality of the
article delivered. This general rule is subject to
several exceptions to be presently noted.
Acceptance, to constitute a waiver, must be with
full knowledge of the defects in performance or in
the article delivered, or the defects must be discov-
28 THE LAW OF WAIVER
erable upon inspection, or there must be such cir-
cumstances as will impute knowledge of the defects
or the imperfect performance. One cannot, how-
ever, close his eyes and refuse to see defects and
then defend, after an acceptance or user, against an
improper performance. He must use reasonable
diligence to discover defects, and if he fails to do
so, his acceptance will be held a waiver of them.
Sec. 13. The question of whether an accept-
ance constitutes a waiver of defects or defective
performance depends, to a vast extent, upon the
subject-matter of the contract. One is practically
always at liberty to refuse an article of personal
property if specifications of a contract in regard to
it have not been lived up to. But it is not so if the
contract concern realty. The owner of the latter
must either accept the premises with the defective
work upon them — it matters not how flagrant the
violations of the contract may have been by the
other party — or he must abandon the use and en-
joyment of his estate. And for this reason, user or
occupancy of premises, if deemed and held an accep-
tance, do not necessarily waive improper perform-
ance of work upon them.
Sec. 14. And the necessities of the case may be
such that a party is bound to accept imperfect per-
formance for the reason that he has no alternative.
In such case, acceptance cannot be held a waiver.
The reason of this is clear, and it applies as well to
buildings, ditches, wells and other structures on
realty as to articles of personal property the ac-
ceptance of which is in the nature of things com-
pulsory. A primary ingredient of waiver is Intent.
.Without it — or its substitute, misleading conduct —
CONTRACTS 29
there can be no waiver. And in the class of cases
under consideration, where a party has no option,
no course but one to pursue, he cannot be held on
account of mere passive use or occupancy to have
intended to forego the right to object to a defective
performance. And this is true whether the ac-
ceptor knew of the defects or not. It is especially
true, as an exception to the general rule-, that latent
defects in a work, those that are not open to inspec-
tion, are not waived by an acceptance.
Sec. 15. The authorities are not harmonious
concerning the principles above outlined, but the
weight of authority is in support of those an-
nounced.
Thus, in the absence of a warranty intended to
survive acceptance, a vendee of personal property
who, after an opportunity to inspect it, accepts it,
waives the right to object on account of visible de-
fects therein16. This is equally true in an executory
contract for the manufacture and sale of an article
of personalty17. But where defective machinery,
made under a contract for a first class outfit, is con-
structed on the premises, the owner does not waive
a claim for damages by accepting it and making the
best of the situation18. An owner of realty, who en-
16. Day v. Mapes-Reeve Co., 174 Mass. 412 ; 54 N. E. 878.
Talbot Pvg. Co. v. Gorman, 103 Mich. 403 ; 61 N. W. 655 ; 27
L,. R. A. 96.
Reed v. Randall, 29 N. Y. 358 ; 86 A. D. 80S.
Pierson v. Crooks, 115 N. T. 539; 22 N. B. 349; 12 A. S. R. 831.
(Wiaeber v. Talbot, 167 N. T. 48; 60 N. E. 288; 82 A. S. R. 712.
IT. Studer v. Blelstein, 115 N. T. 316 ; 22 N. E. 243 ; 5 L.. R. A. 702.
Harris Co. v. Campbell, 68 Tex. 22; 8 S. W. 243.
Norton v. Dreyfuss, 7 Cent. Rep. 106 N. T. 90 ; 12 N. E. 4J8.
Black River Lbr. Co. v. Warner, 93 Mo. 374.
18. Payne v. Amos Kent B. Co., 110 La. 750 ; 34 So. 763.
Manitowoc S. B. Works v. Glue Co., 120 Wis. 1; 97 N. W. 515.
30 THE L'AW OF WAIVER
ters into possession, use and enjoyment of a build-
ing constructed thereon, does not ordinarily waive
a full compliance by the contractor with his contract
to erect the building19. This has been held on the
theory that the owner has no choice but to accept,
and the acceptance thereby becomes in its nature in-
voluntary20, and on the further theory that the own-
er does not accept possession as he has never been
out of possession21.
Latent defects, especially, are not waived by an
acceptance of the work, nor by payment of the con-
tract price, nor 'by occupancy of a building built un-
der the contract involved22. And even if such pay-
ment had been made, or such acceptance or occu-
pancy occurred, the owner could recover damages
for the defects subsequently discovered23.
Sec. 16. The foregoing principles have been by
a great many authorities modified or rendered less
arbitrary by what has been termed "the more mod-
ern rule"24. This rule is only an intensive applica-
19. Monford v. Martin, 22 Ky. 609; 17 A. D. 168.
Kilbourne v. Jennings, 40 la. 473.
Mitchell v. Wiscotta Land Co.. 3 la. 209.
Faulkner v. Cornell, 80 N. Y. Supp. 526.
Stewart v. Fulton, 31 Mo. 59.
Feeney v. Bardsley, 66 N. J. L. 239 ; 49 Atl. 443.
Yeates v. Ballentine, 56 Mo. 58-0.
Anderson v. Todd, 8 N. Dak. 158; 77 N. W. 599.
Hartupee v. Pittsburg, 97 Pa. 107.
20. Bozarth v. Dudley, 44 N. J. L. 304; 43 A. R. 373.
21. Smith v. Brady, 17 N. T. 173; 72 A. D. 442.
Franklin v. Schultz. 23 Mont. 1&5 ; 57 Pac. 1037.
22. Korf v. Lull, 70 111. 420.
Ekstrand v. Barth, 41 Wash. 321; 83 Pac. 306.
23. Ludlow v. Kuhling, 119 Ky. 251; 83 S. W. 634; 115 A. 8. R.
264.
Flannery v. Rohrmayer, 46 Conn. 558; 33 A. R. 36.
24. McDonough v. Marble Co., 112 Fed. 634; 60 C. C. A. 403.
CONTRACTS 31
tion of the doctrine of Substantial Performance, to
be presently discussed. By the strict rule of the
common law, one promising to deliver articles of
personal property, or to perform services, or mak-
ing the performance by him of any other contract a
condition precedent to payment or performance by
the other party, thus making the contract entire,
must show a complete and full performance before
he can hold the other party liable. A partial per-
formance entitled him to nothing. He was held to
the very letter of his engagement. But for many
years a tendency has been manifested to soften the
harshness of this doctrine, and to instill into its ap-
plication principles of equity and justice that, on
the one hand, will prevent you from being exempt
from payment for services which I render you, and,
on the other hand, will give to me only the just and
reasonable compensation which those services have
been worth to you.
Sec. 17. Some courts have gone very far in the
application of this last-named principle. One of the
first, and perhaps one of the leading cases showing
an abrupt and radical departure from the strictness
of the common-law rule is from the New Hampshire
Supreme Court25, and since the decision in that case,
difficulty in finding and applying the true rule has
increased. It has been determined by those courts
that have gone farthest in their departure from the
common-law rule that, even under a willful abandon-
ment of a contract or a refusal of performance with-
out a justifiable excuse, a party may recover what
25. Britton v. Turner, 6 N. H. 481.
•
32 THE LAW OF WAIVER
his services or materials accepted or retained by the
other party were reasonably worth, subject only to
the latter 's claim for damages by reason of the in-
complete performance26. Following this line of au-
thorities, recovery may be had for the reasonable
value of work under a contract which the employe
has abandoned prior to the expiration of his term of
employment27. Thus, recovery may be had for a
number of articles of personal property delivered, a
greater number having been contracted to be de-
livered28 ; for 400 bushels of corn, 1,000 having been
contracted for29; and for a building not completed
in substantial compliance with the contract, but
taken possession of by the owner30. The doctrine of
these authorities is based on an acceptance by the
promisee and a resulting benefit to him from the par-
tial or imperfect performance by the contractor ; and
the acceptance is held to amount to a waiver of the
defective performance.
26. McDonough v. Marble Co., 112 Fed. 634; 50 C. C. A. 403.
Wolf v. Gerr, 43 la. 339.
McClay v . Hedge, 18 la. 66.
Filler v. Nichols, 8 la. 106 ; 74 A. D. 298.
Barnwell v. Kempton, 22 Kans. 99.
Hayward v. Leonard, 7 Pick. 181 ; 19 A. D. 268.
Parcell v. McComber, 11 Neb. 209 ; 7 N. W. 529 ; 35 A. R. 476.
Bedow v. Tonkin, 5 S. Dak. 432 ; 59 N. W. 222.
Hlllyard v. Crabtree, 11 Tex. 264 ; 62 A. D. 475.
27. Brltton v. Turner, 6 N. H. 481.
Lamb v. Brolaskl, 38 Mo. 51.
Pixler v. Nichols, 8 la. 106 ; 74 A. D. 298.
McKlnney v. Springer, 3 Ind. 59 ; 54 A. D. 470.
Duncan v. Baker, 21 Kans. 99.
Riggs v. Horde, 25 Tex. Sup. 456; 78 A. D. 584.
Hollls v. Chapman, 36 Tex. 1.
28. Saunders v. Short, 86 Fed. 225; 30 C. C. A. 462.
Watson v. Kirby, 112 Ala. 436 ; 20 So. 624.
29. Bowker v, Hoyt, 18 Pick. 555.
30. Lyon Dist. v. Lund, 51 Kans. 731 ; 33 Pac. 595.
Davis v. Badders. 95 Ala. 348 ; 10 So. 442.
CONTRACTS 33
Sec. 18. There is yet, however, a great array
of authorities standing on the opposite extreme and
holding in conformity with the old rule that where a
contract is entire, strict performance is a condition
precedent to the payment of the contract price, and
that mere acceptance or use of the contractor's labor
or its products will not constitute a waiver of full
performance31. The reasoning on which this rule is
based is well stated by the Massachusetts court,
speaking through Norton, J. : ' * The plaintiff cannot
recover on his express contract, because he has not
executed it on his part, and the performance is a con-
dition precedent to the payment. He cannot recover
on a quantum meruit for the labor he has performed,
because an express contract always excludes an im-
plied one in relation to the same matter"32.
Sec. 19. But between these two extremes is a
better rule which has come to be recognized by most
of the states, either applied in its entirety or by
close approaches. Where a contractor, without
fraud, or willful and inexcusable abandonment of
his contract, does the work in good faith, but not in
exact accord with the terms of .the contract, and the
departure from its terms is technical or inconsequen-
tial, the owner, by using or accepting the work or re-
ceiving benefits from it, will be deemed to have
waived strict compliance and will be liable for the
reasonable value of the services or materials, less
any damage he may have suffered by reason of a
81. Brown v. Fitch, 33 N. J. L. 418.
Haslock v. Mayers, 2 Dutcher 284 (N. J.).
Monford v. Mastin, 17 A. D. 168 (Ky.).
32. Olmstead v. Beale, 19 Pick. 538.
34 THE LAW OF WAIVER
failure of performance33. This, too, is based on the
condition that the contractee has retained the work
or its proceeds, and that he has received from them
benefits in excess of the damage caused him by the
departure from the terms of the contract34, and on
the further condition that the non-compliance with
the contract was not fraudulent35, nor willful and un-
justifiable on the part of the contractor.36
33. Moffit v. Glass, 117 N. Car. 142 ; 23 S. E. 104.
Dutro v. Walker, 31 Mo. 516.
Goldsmith v. Hand. 26 Oh. St. 101.
Bell v, Teague, 85 Ala. 211; 3 So. 861.
Estop v. Fulton. 66 111. 467.
McClure v. Seerist. 5 Ind. 31.
Blakeslee v. Holt, 42 Conn. 228.
White v. Oliver, 36 Me. 92.
Eaton v. Gladwell, 121 Mich. 444 ; 80 N. W. 292.
Schaefer t/. Gildea, 3 Colo. 15.
Harris Co. v. Campbell, 68 Tex. 22 ; 3 S. W. 243 ; 2 A. S. R. 467.
Gallagher v. Sharpless, 134 Pa. 134; 9 Atl. 491.
Meincke v. Talk. 61 Wis. 623 ; 21 N. W. 785 ; 50 A. R. 157.
Smith v. Packard, »4 Va. 730; 27 S. E. 586.
Fitzgerald v. La. Pate, 64 Ark. 34; 40 S. W. 261.
HH1 v. McKay, 94 Cal. 5; 29 Pau. 406.
Aetna, etc., Co. v. Kossuth Co., 79 la. 40; 44 N. W. 215.
Hattin v. Chase, 88 Me. 237; 33 Atl. 989.
Leeds v. Little, 42 Minn. 414; 44 N. W. 309.
Crouch v. Guttmann, 134 N. T. 45; 31 N. EX 271 ; 30 A, S. R.
603.
Dermott v. Jones, 69 U. S. 1 (2 Wall.) ; 17 L. Ed. 762.
Elizabeth v. Fitzgerald. 114 Fed. 547; 52 C. C. A. 321.
14. Broughton v. Smith. 142 N. Y. 674 ; 37 N. E. 470.
Genni v. Hahn, 82 Wis. 90; 51 N. W. 1096.
Remy v. Olds, 88 Cal. 537 ; 26 Pac. 355 ; 21 L. R. A. 645.
Peacock v. Gleason, 117 la. 291 ; 90 N. W. 610.
SI. Schmidt v. No. Takima, 12 Wash. 121; 40 Pac. 790.
Veazie v. Bangor, 53 Me. 51.
36. Coburn v Hartford, 38 Conn. 290.
Thrift v. Payne, 71 111. 408.
Escott v. White, 10 Bush (Ky.) 169.
Thayer v. Wadsworth, 19 Pick. 349 (Mass.).
Boheible v. Klein. 89 Mich. 376; 50 N. W. 857.
Elliott v Caldwell, 43 Minn. 357 ; 45 N. W. 845; 91* R. A. 52.
Posey v. Garth, 7 Mo. 94; 37 A. D. 183.
Gmther v. Schultz, 40 Oh. St. 104.
Tan Clief v. Van Vetchen, 130 N. Y. 571; 20 N. E. 1017.
CONTRACTS 35
Sec. 20. The -cases folio wing- the rule first above
mentioned are diametrically opposed to this holding
as to the breach of the contract's being willful and
unjustifiable. But the last-named rule seems to cov-
er all points of justice between man and man, saying
to the contractor, as it does, "you must use every
honest effort to discharge the terms of your obliga-
tion with strictness and correctness, and if, after
such efforts, you have not abandoned the contract
willfully, but your work under it is a substantial
compliance with its conditions and of benefit to the
owner, then he shall pay you as much as it is reason-
ably worth to him"; and, on the other hand, saying
to the owner, "you shall not insist upon enjoying the
garner of another's gleaning without paying for his
labor, but he shall answer to you for any damage you
have suffered by reason of the incompleteness or
imperfection of his gleaning, and you to him only for
the benefits you have received therefrom." It will
be observed that the discussion herein applies only
to entire contracts. If the contract be sever able, of
course the accepting of any portion as performance
progresses renders the acceptor liable as if that por-
tion constituted the whole contract.
iSec. 21. The acceptance or retention of benefits
after the non-performance OT imperfect performance
of a contract is a waiver of any right to consider such
Harris v. Sharpless, 202 Pa. St. 243; 51 Atl. 965; 68 L. R. A.
214.
Marshall v. Jones, 11 Me. 54 ; 25 A. D. 260.
Fairfax Co. v. Chambers, 75 Md. 604 ; 23 Atl. 1024.
Steamboat Co. v. Wilkins, 8 Vt. 54.
Steeples v. Newton, 7 Or. 110; 33 A. R. 705.
Feeney v. Bardsley, 66 N. J. L. 239 ; 49 Atl. 443.
Vlcksburg Co. v. Gorman, 70 Miss. 360 ; 11 So. 680.
Marchant v. Hayes, 117 Cal. 663 ; 49 Pac. 840.
36 THE LAW OF WAIVER.
breach a discharge or release from the contract37.
But the acceptor does not thereby waive his claim
for damages on account of such breach38. This is
justly so for the reasons hereinabove adverted to,
that very often one in no-wise in default may be
compelled by the exigences of the case to content
himself with what is offered by the other party. And
in such case, in making the best of a bad situation, he
should not be robbed of a remedy that would permit
him to measure accounts with his adversary and
thereby strike the true balance. This is especially
true of contracts for the sale of chattels with either
express39 or implied40 warranty. And though in this
class of cases much difference of opinion has been
expressed as to whether the vendee can accept and
retain the chattels with knowledge of their defects
or an opportunity to inspect them, and yet recoup
his damages against the purchase price, the weight
of authority is decidedly to the effect that that he
does not thereby waive his right to damages on ac-
count of such defects41. And, whether the chattels
are warranted or not, a claim for damages is not
waived where, at the time of delivery, the purchaser
37. Brady v. Cassidy, 145 N. T. 171; 39 N. E. 814.
38. Cannon v. Hunt, 116 Ga. 462 ; 42 S. E. 734.
Underwood v. Wolf. 113 111. 425. 23 N. E. 598; 19 A. S. R. 40.
Flannery v. Rohrmayer, 46 Conn. 558; 33 Atl. 36.
Bucklin v. Davidson. 156 Pa. St. 362 ; 26 Atl. 643.
Garfleld Co. v. Ry., 166 Mass. 119; 44 N. E. 119.
Payne v. Lumber Co., 110 La. 750; 34 So. 763.
39. Morse v. Moore, 83 Me. 473; 22 Atl. 362; 23 A. S. R. 783; 13
L. R. A. 224.
40. FrJth v. Hollan, 133 Ala. 583 ; 32 So. 494 ; 91 A. S. R. 54.
41. English v. Spokane Co., 57 Fed. 451.
N. W. Cordage Co. v. Rice, 5 N. Dak. 432; 67 N. W. 298;
57 A. S. R. 563.
Tacoma Co. v. Bradley, 2 Wash. 600 ; 26 Pac. 454 ; 26 A. S. R.
890.
Woodruff u. Graddy. 91 Ga. 333 ; 17 S. E. 264 ; 44 A. S. R. 33.
CONTRACTS 37
objects to the defects and stipulates that the receipt
shall not be deemed an acceptance42.
B. BY PROCEEDING UNDER THE CON-
TRAOT AFTER A BREACH :— Sec. 22. Although
one party to a contract may be in default in comply-
ing with his part of the obligation, yet if the other
treat the contract as still in force and proceed under
it, he will be held to have waived the default in per-
formance43. And if a person having work done is at
hand with fair opportunities to inspect the work as it
progresses, and does make such inspection, but makes
no objection to defects in the work, and accepts is as
full compliance, he waives all right to thereafter
claim damages for such defects as a careful inspec-
tion would have disclosed44.
Sec. 23. But it is not every act of proceeding
under a contract that will constitute a waiver of de-
faults theretofore made by the other party. To have
this effect, the proceeding must be with knowledge
that the breach exists, and the words or acts relied
on as a waiver must be inconsistent with any other
intention. And under this doctrine it has been held
that the taking possession of a building in which de-
fective finishing material has been put does not
waive the owner's right to damages on account of
such defects if an inspection would not have brought
42. Blackwood v. Cutting Co., 76 Cal. 212; 18 Pac. 248; 9 A. S.
R. 199.
43. McCord v. Ry. Co., 3 La. Ann. 285.
Eyester v. Parrott, 83 111. 51".
Smith v. Alker, 102 N. T. 87; 5 N. E. 791.
Murray v. Farthing, 6 Mo. 251.
44. U. S. v. Walsh, 108 Fed. 502.
Hinshorn v. Stewart, 49 la. 418.
Pierson v. Crooks, 115 N. Y. 316; 22 N. E. 349; 12 A. S. R. 83.
38 THE LAW OF WAIVER
them to light until after the wood had seasoned45.
So, delivering several loads of materials without re-
quiring pay for same, where the contract provided
for payment for each load as delivered, is not a
waiver of the provision; and under the same rule,
acceptance of fifty out of a hundred fish stands con-
tracted to be delivered and refusal of the other fifty
on account of defects therein cannot 'be held a waiver
of such defects46. And a waiver of the right to dam-
ages for defective machinery does not occur by rea-
son of payment of the purchase price before comple-
tion of the machinery47. Nor does occupancy of a
building waive a right to damages for defects in the
plastering thereof which only time will show and by
reason of which the plastering finally falls off48.
Nor would such be a waiver of any other defects that
were not discoverable at the time possession was
taken by the owner49. This is only another applica-
tion of the rule hereinbefore mentioned that accept-
ance of work does not waive latent defects, or those
riot known to the owner and not discoverable upon
inspection50.
Sec. 24. The question of the waiver of a default
in the performance of a contract in this, as in nearly
all other connections, is a question of intent to be
gathered from either the acts or words of the parties.
And in the case of any breach as, for instance, not
45. Utah Lbr. Co. v. James, 25 Utah 434; 71 Pac. 986.
46. Oardner v. Clark, 21 N. Y. 399.
Freeman v. Skinner, 31 N. Car. 32.
47. Industrial "Works v. Mitchell, 114 Mich. 29 ; 72 N. W. 25.
48. ftlonahan v. Fitzgerald, 164 111. 625; 45 N. E. 1013.
49. Splnk v. Mueller, 77 Mo. App. 85.
60. Korf v. Lull, 70 111. 422.
Van Buskirk v Murden, 22 111. 446 ; 74 A. D. 163.
CONTRACTS 3i
completing the contract within the time specified, if
the contractee, with knowledge of the breach, permit
the other party to continue, there-by recognizing the
contract as still in force, he waives the default51.
C. BY PREVENTING THE OTHER; PARTY
FROM PERFORMING:— Sec. 25. One party to a
contract who, by his conduct, prevents the other
party from following strictly the letter of his obliga-
tion cannot be heard to complain that the other is in
default in performance, for by such preventing of
full performance he waives the right to de-
mand it52. And he cannot recover damages
on account of such non-performance53. But,
on the other nand, such prevention operates as a
waiver or discharge of the contract54, and if the
contractor has suffered damages by reason thereof,
he may recover them of the contractee55. And in
61. Sinclair v. Tailmadge, 35 Barb. 602.
Foster v. Worthmgton, 58 Vt. 65 ; 4 Atl. 565.
Phil. Con. Co. v. Seymour, 91 U. S. 646; 23 L. Ed. 341.
62. White v. School Dist., 1B9 Pa. St. 201 ; 28 Atl. 136.
U. S. v. Peck, 102 U. S. 64.
Day v. Jeffords, 102 Ga. 714; 29 S. E. 591.
Blodgett v. Company, 120 Fed. 893.
U. S. v. Jack, 124 Mich. 210; 82 N. W. 1049.
Laybourne v. Seymour, 53 Minn. 105; 54 N. W. 941; 39 A.
S. R. 579.
53. Dis. of Col. v. Iron Works, 181 U. S. 453.
Maher v. Lbr. Co., 86 Wis. 530 ; 57 N. W. 357.
Wyandotte Ry. v. Brdg. Co., 100 Fed. 197; 40 C. C. A. 325.
Blymer Co. v. McDonald, 48 La. Ann. 439; 19 So. 459.
Davis v. Light Co., 57 Minn. 402; 59 N. W. 482; 47 A. S. R.
622.
Murphy v. Orul, 185 Pa. St. 250; 39 Atl. 959.
Antonelle v. Lbr. Co., 140 Cal. 309; 73 Pac. 966.
64. Stark v. Duval!, 7 Okla. 213 ; 54 Pac. 453.
Lovell v. Ins. Co.. 11 U. S 264.
Eames v. Savage, 14 Mass. 425.
Mooney v. Iron Co., 82 Mich. 263; 46 S. W. 376.
Meyser v. Rehberg, 16 Mont. 331 ; 41 Pac. 74.
55. Langfc/rd v. U. S, 95 Fed. 933.
Atl. Ry. Co. v. Const. Co., 98 Va. 503 ; 37 S. E. 13.
40 THE LAW OF WAIVES
such case, too, the contractor may recover for what
he has done without showing a full performance of
the contract on his part36. Thus, a seller of chattels
who is prevented from delivering a part of the goods
contracted for by the act of the vendee is released
from further performance, and he may recover from
the vendee the full price of the goods already de-
livered57. And where the payee of a debt was to re-
ceive in payment a certain amount of sawing annual-
ly, it was held that by his failure to furnish the logs
necessary for sawing he prevented the other party
from performing his part of the contract, thereby
waived such performance, and could not later recover
the debt58. Though a contract to make brick does
not provide that the employer shall furnish supplies
to the employe, but he understands that it will be
necessary for him to do so, and he does so furnish
them for a time, a discontinuance to do so will op-
erate as a prevention of performance by the employe
and release him from any further obligation under
the contract69. Where a vendee of logs has prevented
and thereby waived full performance by the vendor,
the latter is still bound by a scale and measurement
agreed upon as to the logs already delivered00. An
attorney accepted a note to defend one charged with
66. North v. Mallory, 94 Md. 305 ; 61 Atl. 89.
Parker v. McComber. 17 R. I. 674; 24 Atl. 464; 16 L R A
858.
East Granite Co. v. Helm. 89 la. 698; 57 N. W. 437.
Teakle v. Moore, 131 Mich. 427; 91 N. W. 636.
Newhal Co. v. Daly. 116 Wis. 256; 93 N. W. 12.
67. Hartlove v. Durham, 86 Md. 689 ; 39 Atl. 617.
68. Fredenburg v. Turner, 37 Mich. 402.
Stinson v. Freeman, 38 Mich. 314.
69. Rioux v. Ryegate Brick Co., 72 Vt. 148 ; 47 Atl. 406.
<0. Eakright v. Torrent, 105 Mdch. 294; 63 N. W. 292.
CONTRACTS 41
crime; before trial the latter committed suicide; it
was held that the attorney, having been prevented by
the other party from performing, could recover on
the note, and that a plea of failure of consideration
could not be entertained61.
Sec. 26. A waiver of performance being attrib-
uted to the one who prevents performance by the
other party, it has been held that the latter has three
means of redress, any one of which he may pursue :
1. He may sue immediately for special damages;
2. He may await the expiration of the contract per-
iod and sue for full compensation; or, 3. He may
sue at once on a quantum meruit62. And even in a
contract void under the statute of frauds, if one
party has partly performed and the other repudiates
the contract, the latter cannot escape liability for
such part performance63, and he is liable even to the
extent of refunding payments already received by
him under the contract64. If in a contract to sell a
mare she is to come up to certain tests, a purchaser
cannot escape liability by failing or refusing to make
the tests65. Under a contract for the sale of a heat-
ing plant in which the vendor is to have a year in
which to cure any defects, the vendor may recover
the contract price if the plant be removed within the
year66.
Sec. 27. The rule is very frequently applied in
cases of building contracts, and in these, as in other
61. Mitcherson v. Dozier. 22 A. D. 116 (Ky.).
62. Beck v. Spice Co., 108 Ga. 242 ; 3 S. B. 894.
63. Lockwood v. Barnes. 3 Hill 128; 38 A. D. 620.
64. Moody v. Smith. 70 N. Y. 600.
65. Deyo v. Hammond, 102 Mich. 122; 60 N. W. 455; 25 L. R. A.
719.
66. Lehman v. Webster, 209 111. 264; 70 N. E. 600.
42 THE LAW OF WAIVER
contracts, it is held that one cannot cause the other
to default in his obligation and yet hold him liable
for non-performance nor escape liability for such in-
terference67. Thus, if repairs and alterations become
necessary by reason of defective plans furnished by
the owner, the contractor is not liable for damages
caused thereby68. Where a party agreed to deliver
coal for a year at a stated price, and did so during
the season that the market price was above the con-
tract price, the purchaser could not abandon the con-
tract and refuse to take the coal during the season
that the market price was below the contract price;
and on his refusal to take the coal the seller could re-
cover the difference between the market price and
the contract price69.
Sec. 28. The voluntarily making it impossible
to perform a contract is equivalent to prevention ;
and the one so creating the impossibility imposes
upon himself the liabilities above outlined as attend-
ing a prevention70. As where the vendee of personal
property agrees to measure it in a certain way be-
fore payment, and by his act makes such measure-
ment impossible, the vendor may recover the contract
price of whatever amount he may have delivered71.
67. Adams v. Burbank, 103 Cal. 646 ; 37 Pac. 640.
Newhal Eng. Co. v. Daly, 110 WIs. 256; 93 N. W. 12.
68. Coon v. Water Co.. 152 Pa. St. 644 ; 25 Atl. 505.
69. Wellston Co. v. Franklin Co., 57 Oh. St. 182; 48 N. E. 888.
70. Blodgett v. Zinc Co., 120 Fed. 893.
Brewer v. McCain, 21 Colo. 382; 41 Pac. 822.
Christopher Co. v. Yeager, 202 111. 486; 67 N. E. 166.
Shirk v. Lingeman, 26 Ind. App. 630; 59 N. E. 941.
Loftus v. Riled, 83 la. 503 ; 50 N. W. 17.
Howard v. Mfg. Co., 162 N. T. 347; 56 N. E. 980.
Vanderhoof v. Shell, 42 Or. 578; 72 Pac. 126.
Bishop v. Averhill, 17 Wash. 209 ; 50 Pac. 1024.
"1. Harper v. Sterling, 84 111. App. 62.
CONTRACTS 44
Sec. 29. And if one demands performance in an
illegal way, it is the same, and bears the same results
as making it impossible to comply with the contract ;
as where an employer demands that an employe work
on Sunday, in such a case it was held that the em-
ploye could quit the service and recover for his labor
already performed72. And the same result follows
if a party disables himself from performing his part
of the contract73.
Sec. 30. So, if a party refuses to treat the con-
tract as still subsisting and binding upon him, or by
his acts and conduct shows that he has abandoned
it, this, in legal effect, amounts to prevention and
•bears with it the same rights and liabilities as if
there had been an absolute physical prevention7*.
Thus, where a party ordered an engine to be made
and the other party proceeded to make it, but before
delivery received a countermand of the order, he was
held to have been prevented from performing his
part of the contract75. The doctrine was first pro-
mulgated by the English courts in the case of Hochs-
ter v. De La Tour70, and was followed in the case of
Frost v. Knight77, which have ever since been held
72. Hunt v. Adams, 81 Me. 356; 17 Atl. 298 ; 3 L. R. A. 608.
73. Simmons v. Pomeroy, 3 Mackey 213 (D. C.)
Numerous authorities cited in 9 Cyc. 639.
74. Lake Shore Ry. v. Richards, 152 111. 59; 38 N. B. 773; 38 L.
R. A. 1.
Derby v. Johnson, 21 Vt. 21.
Haines v. Tucker, 50 N. H. 311.
Smith v. Lewis, 24 Conn. 624 ; 63 A. D. 180.
Collins v. Delaporte, 115 Mass. 162.
2 Smith's Leading Cases, Am. Ed. 22-23.
Clark v. Marsiglia, 1 Denio, 43 A. D. 670.
75 Hosner v. Wilson, 7 Mich. 304; 74 A. D. 718.
76. L. J. Q. B., 455.
77. L. R., 7 Ex. 111.
44 THE LAW OF WAIVES
leading cases on the subject. In this country the
doctrine has been pretty generally adopted, although
a contrary rule has been invoked in some instances.
It has been applied to a case of a promise of
marriage where one party married another person
before time for performance of the promise, and it
was held that he thereby prevented performance by
the other party to the contract, in legal effect waived
it, and threw wide the doors of the courts for an im-
mediate action for the breach78.
Sec. 31. But it is said that the refusal to per-
form must be absolute and unequivocal79 ; and that it
must be acted on by the other party, for mere asser-
tion that a party will be unable or unwilling to per-
form his contract is not sufficient to constitute a
waiver of performance by the other party80.
D. CONDITION FOE PAYMENT FOR
GOODS ON DELIVERY:— Sec. 32. A seller of
goods to be paid for on delivery has the right to re-
claim the goods if the condition as to payment be not
complied with. This is the rule whether the sale be
an absolute one or conditional on title not passing
until the purchase price be paid. But the seller is
the only one who can take advantage of this condi-
tion, and if he see fit to deliver the goods without ex-
acting payment for them at the time, the sale will
be a complete one, and the buyer cannot complain
that the condition as to payment has not been com-
plied with. If, however, the seller make an absolute
78. Burtis v. Thompson, 42 N. T. 246.
See, also: 32 la. 409.
79. Benjamin on Sales, Art. 568.
Smott v. U. S., 16 Wall. 36.
80. Benjamin on Sales, Art. 568 and cases cited.
CONTRACTS 45
'delivery of the goods sold without exacting a com-
pliance with the condition as to payment at the time
of delivery, he thereby waives the breach of the con-
dition, the title to the property passes from him, and
he will not thereafter be entitled nor permitted to
reclaim the goods81. It is the seller's duty to de-
mand payment in some appropriate manner, and un-
less he do this his delivery will be held a waiver of
his right to reclaim the goods on account of the non-
payment of the purchase price at the time stipulated
for82.
Sec. 33. But waiver here, as in most other
cases, is a question of intention, and there may be
facts and circumstances surrounding and attending
the delivery of goods that indicate that the seller
did not intend, by a delivery without collecting there-
for, to waive this condition, in which event a waiver
will not be imputed to him, and he may reclaim and
retake the goods so delivered83. This is especially
the case where there is either an express or implied
understanding that the title to the goods shall not
pass from the vendor until the payment is made.
81. Scharff v. M«yer, 133 Mo. 428; 34 S. W. 858.
Pinkham v. Appleton, 82 Me. 574; 20 Atl. 237.
Witte Mfg. Co. v. Reilly, 11 N. Dak. 203 ; 91 N. W. 42.
Kingsley v. McGrew, 48 Neb. 813 ; 67 N. W. 787.
Freeport Stone Co. v. Carey, 42 W. Va. 276 ; 26 S. E. 183.
Foley v. Mason, 6 Md. 37.
82. Mackaness v. Long, -85 Pa. St. 158.
Martin v. Wirts, 11 111. App. 567.
Freeman v. Nichols. 116 Mass. 309.
Leavitt v. Rosenthal, 84 N. Y. Supp. 530.
83. Ewing v. Sylvester, 94 S. W. 405; (Tex. Civ. App.).
Shines v. Stiner, 76 Ala. 458.
Hodgson v. Barrett, 33 Oh. St. 63.
Hart v. Boston, etc. Ry., 72 N. H. 410; 56 Atl. 920.
Stone v. Perry, 60 Me. 48.
Dows v. Kidder, 84 N. T. 121.
46 THE LAW OF WAIVER
And while it is the presumption that where goods
were delivered without requiring payment, the in-
tention was to waive the condition as to payments
being concurrent with delivery, and such is prima
facie proof of waiver, still the presumption may be
rebutted by showing a contrary understanding84.
®ec. 34. But even where the seller demands
payment at the time of the delivery of the goods, he
must stand by his demand if he would exercise his
right to reclaim or retake the goods. For if he vary
from the terms of the agreement himself, as by ex-
tending credit to the buyer, taking security for the
purchase price, or granting an additional time for
payment without expressly reserving to himself title
to the property, he will be held to have waived the
condition as to payment and cannot later retake or
reclaim the goods85. And his diligence in taking
measures to maintain his title to the goods must be
as great as is commensurate with the facts and cir-
cumstances or the nature of the case will permit, for
his laches, or failure to exercise reasonable prompti-
tude in reclaiming the goods for default in payment
will be construed as a waiver of his right to reclaim
them86.
54. Flshbeck v. Van Dusen, 33 Minn. Ill; 22 N. W. 244.
Anderson, etc. v. Carr-Curran Co., 58 N. J. Eq. 59; 48 Atl. 428.
Young v. Kans. Mfg. Co., 23 Fla. 394; 2 So. 817.
Osborn v. Gantz, 60 N. Y. 540.
55. Thompson v. Wedge, 50 Wis. 642 ; 7 N. W. 560.
Mich. Cent. Ry. v. Phillips, 60 111. 190.
*«. Paulson v. Lyon, 26 Utah 438 ; 73 Pac. 510.
Hirsch v. Leatherbee Co., 60 N. J. L. 509 ; 55 Atl. 645.
Strother v. McMullen Lbr. Co., 200 Mo. 647 ; 98 S. W. 84.
Drake v. Scott, 136 Ala. 261; 33 So. 873.
Starnes v. Roberts, 128 Ga. 718; 58 S. E. 348.
Carter v. C, of W. Co., 73 Minn. 315; 76 N. W. 56.
Duagherty v. Fowler, 44 Kans. 628 ; 25 Pac. 40.
CONTRACTS 47
Sec. 35. When, however, default in payment is
made by the buyer, the seller has two remedies, ei-
ther of which he may adopt : He may disaffirm the
sale and retake the goods, or he may deliver the
goods absolutely and rely upon the personal respon-
sibility of the buyer. But by electing to do one of
the two, he waives the right to follow the other and
must abide the result of such election and waiver87.
2. WAIVER OF TIME FIXED FOR PERFORMANCE.
Sec. 36. In cases arising on agreements that
have been broken by one party, it frequently becomes
necessary to determine whether by its terms time
has been made one of the important elements upon
which the contract depends ; in other words, whether
time is of the essence of the contract. Upon this
point liability or non-liability often hinges. By say-
ing that time is of the essence of the contract is
meant that the provision as to time in which an obli-
gation must be discharged is one of the essential con-
ditions, and one of the requirements of which are
mandatory and to be disregarded at the peril of him
whose duty it is to fulfill those requirements. By
the overwhelming weight of authority the general
rule is held to be that time is of the essence of the
contract at law unless it appears from the agreement
that the parties did not so regard it88. But in equity,
Wing v. Thompson, 78 Wis. 256 ; 47 N. W. 606.
Sprague Co. v. Fuller, 158 Fed. 588.
87. Marston v. Baldwin, 17 Mass. 606.
Heller v. Elliott, 44 N. J. L. 467.
Fuller v. Eames, 108 Ala. 464 ; 19 So. 366.
•8. Garrison v. Cook, 96 Tex. 228; 72 S. W. 64; 97 A S R 906-
61 K R, A. 342.
Underwood v. Wolf, 13 HI. 425; 23 N. E. 598; 19 A. S. R. 40.
Slater v. Emerson, 19 How. 224 (U. S.).
6hinn v. Roberts, 1 Spencer (N. J.) 435 ; 43 A. D. 636.
48 THE LAW OF WAIVER
on the contrary, courts do not ordinarily regard time
as of the essence of the contract, although if it is ex-
pressly made so the agreement will 'be carried out89.
Sec. 37. It has been said, however, that ordi-
narily time is not of the essence of a contract. But
it is when it appears from the contract that at the
time of its execution the parties contemplated that
a failure of the promisor to perform at
the time stipulated for would subject the promissor
to damages. And to make time of the essence of the
contract it must appear that the parties made it es-
sential to the contract and intended it so to be, or,
otherwise said, the question is one wholly of the in-
tention of the parties90, and the words of the con-
tract must clearly show this intention91.
In treating of time, the law of waiver has to do
only with contracts in which time is made of their
essence ; for it is elementary that where the contract
fixes no time the law imposes a requirement that the
performance shall be within a reasonable time92, the
reasonableness of which depends upon the facts and
circumstances of each particular case93.
Sec. 38. The consequences arising from a
'breach of a contract where time is of the essence,
are more severe than where it is not ; for, in the
former, a failure to perform in the stipulated time
89. 3 Pomeroy's Eq. Jur. Sec. 1408.
Tate v. Pensacola Co., 37 Fla. 439 ; 20 So. 542 ; 53 A. S. R. 251.
Sanford v. Weeks, 38 Kans. 319; 16 Pac. 465; 5 A. S. R. 748.
Glock v. Howard Co., 123 Cal. 1; 55 Pac. 713; 69 A. S. R. 17.
90. Secomb v. Steel, 61 U. S. 20 How. 94 ; 15 L. Ed. 833.
Wells v. Smith, 7 Paige 32; 31 A. D. 274.
Miller v. Cox. 96 Cal. 339; 31 Pac. 161.
91. Taylor v. Baldwin, 27 Ga. 438; 73 A. D. 736.
92. 9 Cyc., 611 and cases cited in note 48.
53. 9 Cyc., 613, note 65.
CONTRACTS 49
gives the party not in default the option to consider
himself discharged under the contract and to recover
his damages for such breach94 ; tout in the latter, he
cannot consider the contract as discharged but must
give the promissor a reasonable time in which to
perform 95.
Sec. 39. But even if time is of the essence of
the contract, and one party has bound himself, at
all hazards, to perform by a certain time, this is an
obligation the fulfillment of which may be waived
by the party for whose benefit it was made. And if,
after knowledge that the obligation has not been dis-
charged within the time stipulated for, he should
commit any act evidencing a disposition inconsistent
with an intention to insist upon the provision, he will
be held to have waived the default in performance.
The waiver may be by express words, it may be by
conduct leading the opposite party to believe that
the provision as to time will not be urged, by pro-
ceeding under the contract after knowledge of the
default, by otherwise recognizing the contract as ex-
isting after breach by the other party as to time, or
it may be shown by a vast number of acts which an
examination of the cases will disclose.
Sec. 40. If a party permit work to continue
under a contract after the time-limit has expired,
lie waives the default for failure to complete the
»4. Owen v. Henderson, 16 Wash. 39 ; 47 Pac. 215 ; 58 A. S. R. 17.
Staley v. Thomas, 68 Md. 439 ; 13 Atl. 53.
Sanborn v. Murphy, 86 Tex. 437 ; 25 S. W. 610.
Slater v. Emerson, 19 How. 224 (U. S.).
M. 2 Page, Contracts, Sec. 1159, citing.
Armstrong v. Breen, 101 la. 9; 69 N. W. 1125.
Usher v. Hollister, 58 Kans. 431; 49 Fac. 525.
50 THE LAW OF WAIVER
work in time96. It is a waiver of a breach of a con-
dition as to time of performance for an owner to
make part payment and to urge a builder to continue
after he has knowledge that the builder has failed
to complete his contract within the time specified97.
If parties to a contract treat it as in force after the
time fixed for its completion, any right to complain
because it has not been completed in time is waived98.
A party notifying the other, or giving him to under-
stand that the provision of a contract as to the time
of performance would not be insisted upon, cannot
be heard to say that the contract was not completed
in time99. Continuing work under a contract after
certain payments are due, and accepting part of
such sums so in arrears constitute a waiver of the
condition as to time of payment100. If payment is
due at a certain time under penalty of a certain for-
feiture, the forfeiture is waived by an acceptance of
payment after such time1. And a vendor has the
right to rescind the contract on account of non-pay-
ment of the purchase-price notes; he waives the
right, however, by accepting payment after matur-
ity2.
'Sec. 41. A waiver of the right to insist on a
forfeiture in a contract may be implied from the con-
96. Sinclair v. Talmadge, 35 Barb. 602.
Foster v. Worthlngton, 58 Atl. 65.
»7. Phil. Const. Co. v. Seymour, 91 U. S. 646; 23 L. Ed. 341.
98. Andrews v. Tucker, 127 Ala. 602 ; 29 So. 34.
99. Prentlss v. Lyons, 105 La. 382 ; 29 So. 944.
100. Bean v. Bunker, 68 Vt. 72 ; 33 Atl. 1068.
1. Stewart v. Cross, 66 Ala. 22.
Stow v. Russell, 36 111. 18.
Conkling v. King, 10 Barb. 372.
t. Phillips v. Hernden, 78 Tex. 378 ; 14 S. W. 857 ; 22 A. K. R. 59.
Moore v. Giesecke, 76 Tex. 548 ; 13 S. W. 290.
CONTRACTS 51
duct of the parties; and such waiver does appear
where the parties treat the contract as still subsist-
ing after its time-limit has expired3. Under a lease
contract to ripen into a sale upon payment of ten an-
nual payments of rent, even if time is of the essence
of the contract, if the land owner received payment
after the time stipulated for, he waives the breach
and must comply with his part of the contract4.
Sec. 42. It is the duly of the contractee to make
complaint at the time of the breach of a contract that
is to be completed by a certain time, and to permit
the contractor to proceed and finish the work after
such breach is a waiver of the right to object on that
ground5. Accepting work after the stipulated time
for completion is a waiver of the breach as to time,
and the measure of recovery is the reasonable worth
of the work — this being the contract price — less the
actual damages to the owner by reason of the delay6.
In a contract for erecting five houses by October 1st,
which was modified in September by reducing the
number to three, by acquiescing in the work and
contemplating that it might take till Spring to com-
plete it, the owner shows that he has waived the right
to consider time of the essence of the contract7.
Where the time of performance has been twice ex-
tended, and the parties treat the contract as still sub-
sisting, the original time limit is shown to have been
3. Andrews v. Tucker, 127 Ala. 602 ; 29 So. 34.
Lapsley v. Howard, 119 Mo. 489 ; 24 S. W. 1020.
4. Davis v. Roberts, 89 Ala. 402; 8 So. 114; 18 A. S. R. 126.
Lessel v. Goodman, 97 la. 68; 66 N. W. 917; 59 A. S. R. 432.
Mack v. Dailcy, 67 Vt. 90; 30 Atl. 686.
6. Jewell v. Schroeppel, 4 Cow. 567.
6. Orem v. Keetley, 85 Md. 337 ; 36 Atl. 1030.
7. Barnard v. M«L«od. 72 N. W. 24 (Mich.).
52 THE LAW OF WAIVER
waived8. A failure to accept an offer of arbitration
provided for in an agreement as a condition prece-
dent to bringing suit, is a waiver of the right to ar-
bitrate9. Where a reasonable time is given a party
in which to cut and remove timber, a delay of\ thir-
teen years waives his rights under the contract10.
A. PERFORMANCE PREVENTED BY THE
PROMISEE :— Sec. 43. If the contractor is pre-
vented from performing his contract in the time
stipulated for by some act of the promisee, such pre-
vention amounts to a waiver by the latter of the
former 's failure. Thus, where a vendor has told his
vendee that he would not insist upon a forfeiture in
a contract if the payments were not made in time,
such was held a waiver of default in the payment11.
If one party hinder the other in his performance, it
is a legal excuse for not performing in time12. A
contractor is not liable for liquidated damages for
failure to complete a building in time if the owner
was in any manner to blame for the delay13. And
this is true of contracts other than for building14.
A policy of insurance provided that action
thereon should be commenced within a year from
the death of the insured. This provision was waived
8. Moore's Estate, 191 Pa. St. 600; 43 Atl. 474.
9. Jones v. Brown, 171 Mass. 318; 50 N. E. 648.
Hutohlnson v. Insurance Co., 153 Mass. 143 ; 26 N. E. 439.
10. Mfg. Co. v. Hobbs, 128 N. Car. 46; 28 S. E. 26; 83 A* S.
R. 661.
11. Blair u. Blair, 48 la. 393.
12. Van fiuren v. Dipg\s, 52 U. S. 11; 11 How. 461; 13 L. Ed. 771.
18. Weeks v Little, 89 N. Y. 566.
Lilly v. Person, 168 Pa. St. 219 ; 32 Atl. 23.
Tex. Ry. v. Rust, 19 Fed. 239.
14. Vanderhool v. Shell, 42 Or. 578; 72 Pac. 126.
Ashley v. Telephone Co., 25 Mont. 286; 64 Pac. 765.
CONTRACTS 53
where longer delay was caused by acts and repre-
sentations of the insurer15. Where a city delays
erecting piers on which a contractor is to erect a
'bridge, there can be no reduction of the contract
price for delay in completing the bridge even though
the contract provide a penalty for such delay16.
Sec. 44. If delay in carrying out a contract was
caused by failure of the contractee in carrying out
or performing his part of it, he cannot recover dam-
ages from the contractor for not completing in the
time stipulated; the failure of the contractee being
a waiver and the waiver precluding a claim for dam-
ages17. Where a party recognizes a contract as still
in force after the time has expired for its comple-
tion, or directs changes making a longer time neces-
sary, he waives any breach as to time18, and this is
true whether time is expressly made of the essence
of the contract or not19.
B. TIME HELD NOT WAIVED:— Sec. 45.
But the question of whether the time for the per-
formance of a contract has been waived resolves it-
self into a determination of whether the party in
whose favor the stipulation was made intended, to
forego the benefits conferred upon him by such stip-
ulation. He need not expressly manifest such in-
tention. It may be, and frequently is the case, that
15. Hall v. Union Cent. Co., 23 Wash. 610 ; 63 Pac. 505 ; 83 A. S.
R. 844.
16. King Mfg. Co. v. St. Louis. 43 Fed. 768 ; 10 L. R. A. 826.
17. Williams v. Shields, 30 N. Y. S. R. 556.
18. Amoskeag Co. v. U. S.. 17 Wall. 592; 21 L. Ed. 715.
Pickney v. Dambmann, 72 Md. 173 ; 19 Atl. 450.
Cornish v. Suydam, 99 Ala. 620; 13 So. 118.
19. Dannat v. Fuller, 120 N. Y. 554; 24 N. E. 815.
Ward v. Mathews, 73 Cal. 13; 14 Pac. 604.
54 THE LAW OF WAIVER
the law will say to a party: "It is not known what
your secret intention may have been ; but your con-
duct has led your adversary to believe that the full
letter of his obligation would not be demanded of
him, and such conduct precludes you from complain-
ing of his failure of strict performance." But it
is often the case that a party is forced to pursue a
course of conduct that ordinarily would release the
other party from a literal discharge of his contract ;
and if such element of compulsion exists, he will not
be held to have waived a breach of the condition in-
serted for his benefit. Thus, the acceptance of
buildings by the defendant as they had been com-
pleted by plaintiff did not relieve the plaintiff from
his obligation to have them completed by a certain
time20. So, receiving machinery after the time speci-
fied in the contract is not a waiver of defects nor of
the right to damages for its non-delivery in time21.
And accepting payment of over-due installments,
while a waiver of any forfeiture for failure to pay
them in time, is not a waiver as to any future in-
stallments22.
3. WAIVER OF TEINDER OF PERFORM AJNCE.
A. GENERAL RULE'S :— <Sec. 46. Tender is
an offer to comply with the terms of a contract or
obligation. It may be to pay money or to deliver
other articles, or to perform services. Unless there
has been a waiver, the debtor must comply strictly
with the terms of his engagement and follow to the
20. Dermott v. Jones, 64 U. S. 23 How. 220; 16 L. Ed. 442.
21. Van Winkle Co. v. Wilklns, 81 Ga. 93 ; 7 S. E. 644 ; 12 A. S. R.
299.
22. Phelps v. 111. Cent. Ry., 11 Neb. 201.
CONTRACTS 55
letter what the law has prescribed as the rules gov-
erning the making of a tender. The tender can be
made only by- the debtor or his legal representatives,
and only to the creditor, his agent or legal represen-
tative. It must be of the articles provided for in the
agreement, and if payment in money is called for, it
must 'be in money that is legal tender by law. And
it is not sufficient to be able and willing to pay, but
the money must l>e actually produced, and it must be
a sufficient amount to fully discharge the indebted-
ness. If more than enough is tendered, it must be
with the intention that the creditor shall keep all,
and it must not be in such condition that the credi-
tor is required to make change. If a place be specified
in the agreement, tender must be made there; and
if no place be specified, it is the duty of the debtor
to find the creditor and make tender to him, as no
duty rests upon the creditor to make demand upon
the debtor. The party making a tender may couple
with it any condition provided for by law, 'but none
other, and if he attempts to do so the tender will be
insufficient.
Sec. 47. But the foregoing duties imposed "by
law upon a debtor may be waived or rendered un-
necessary by some act of the creditor. And in waiv-
ing a tender, a party comes more nearly to doing so
without intending it than in waiving any other priv-
ilege or right which the law gives him. Like the
waiver of any other right, that of tender may be by
express avowal or by conduct leading the debtor to
believe that it would not be insisted upon. And it is
often waived by implication, following the maxim,
Expressio unius est exclusio alterius; as if you say
to me that you have come to pay me what you owe
56 THE LAW OF WAIVER
me, and I reply that it will be unnecessary to show
any money as I am not bound by the contract ; I will
not later be heard to say that formalities of the ten-
der had not been complied with. This is under the
principle of the law of waiver hereinbefore dis-
cussed, that I have, in a legal sense, actually prevent-
ed you from performing your part of the contract
and have, therefore, waived or dispensed with such
performance. Likewise, refusal to accept a sum be-
cause insufficient in amount waives any formalities
in the tender28. If at the time of tender, objection
is made upon one ground, any other objection the
party might have made will be considered as
waived24. A refusal to accept a check for the only
reason that it is insufficient in amount is a waiver
of the objection that the offer of payment was not
in legal tender25. Or, if the party fail to object that
the tender was not made in time, such objection will
be held waived26. And, while a valid tender can be
made only in legalized currency, this requirement
may be waived, and it is waived if objection be
placed solely on other grounds27. A tender of a cer-
23. Whelan v. Reilley, 61 Mo. 565.
Jennings v. Mendenhall, 7 Oh. St. 257.
Haskell v. Brewer, 11 Me. 258.
24. Moynahan v. Moore, 9 Mich. 9; 77 A. D. 468.
Carman v. Pultz, 21 N. Y. 547.
Bradshaw v. Davis, 12 Tex. 336.
Nelson v. Robson, 17 Minn. 284.
Ricker v. Blanchard, 45 N. H. 39.
Keller v. Fisher, 7 Ind. 718.
25. Larson v. Breene, 12 Colo. 480; 21 Pac. 498.
26. Adams v. Helms, 55 Mb. 468.
27. Ward v. Smith, 7 Wall. 447 (U. S.).
Williams v. Rorer, 7 Mo. 556.
Fosdick v. Van Husom, 21 Mich. 567.
Wheeler v. Knaggs, 8 Oh. 169.
Lowell v. Henry, 6 Ala. 226.
CONTRACTS 57
tain sum was made by check; the payee refused to
receive it on the sole ground that the contract had
been ended; he thereby precluded himself from ob-
jecting to the medium of tender28.
Sec. 48. If no objection be made as to the terms
of an instrument when presented defects therein can-
not afterward be insisted upon29. In fact, if there he
any language or conduct indicating that payment or
performance will be refused if offered, such offer
need not be made, for the law never requires one to
do a vain thing30. So, the refusal of an offer of pay-
ment dispenses with any further tender31. And
where a payee declares that he will not receive mon-
ey if produced, or uses equivalent language, the pro-
duction of the money is thereby waived32. In a con-
tract for the sale of a boat it was held unnecessary
for a party to tender a conveyance stipulated for
when the buyer had signified his unwillingness to
accept it33. Where the debtor holds the money in
his hands and tells the creditor that he has come to
pay, 'but the latter replies that it would be altogether
unnecessary to produce the money, there need be no
28. McGrath v. Gegner, 79 Md. 331 ; 26 Atl. 502 ; 39 A. S. R. 415.
29. Gilbert v. Mosher, 11 la. 498.
30. Sonia Co. v. Red River, 106 La. 42; 30 So. 303 ; 87 A. S. R. 293.
Chinn v. Bretcher, 42 Kans. 316 ; 22 Pac. 426.
31. O'Conor v. Morse, 112 Cal. 31; 44 Pac. 305; 33 A. S. R. 155.
McCally v. Otey, 99 Ala. 584; 12 So. 406; 42 A. S. R. 87.
32. Berthold v. Reyburn, 61 Mo. 595.
Stephenson v. Kilpatrick, 166 Mo. 262 ; 65 S. W. 773.
Guthman v. Kearn, 8 Neb. 507.
Ashburn v. Poulter, 35 Conn. 553.
Berry v. Nail, 54 Ala. 451.
Hall v. Ins. Co., 67 Conn. 105; 17 Atl. 356.
Rogers v. Tindall, 99 Tenn. 356 ; 42 S. W. 86.
Hazard v. Loring, 10 Gush. 267.
33. Lynch v. Postlethwaite, 7 Martin (La.) 69; 12 A. D. 495.
58 THE LAW OF WAIVER
further formalities of the offer to pay34. A release
from damages for personal injuries was alleged to
have been obtained by fraud; no objection, by plead-
ing or otherwise, was made to plaintiff's case for his
failure to tender a return of the fruits of the release,
and the validity of the release was insisted upon ; de-
fendant was held to have waived the necessity of a
tender35.
Sec. 49. The foregoing cases involved a waiver
at the time of tender. But it is not absolutely neces-
sary that the waiver should occur at the time of ten-
der in order for it to be valid. It may be before or
after as well as at the time of tender ; as where a
creditor announces in advance that a tender will not
be accepted, it is thereby waived36. If one party to
a contract notifies the other that he will no longer
be bound by it, he waives the making of a tender of
any sum due him under the contract37. In a suit for
specific performance, where the defendant insists
that he is not bound, no tender of the purchase
price need be made before bringing suit38.
•Sec. 50. And, again, some act of the creditor
may prevent an actual tender ; as in a case where a
party should have delivered a deed on a certain day,
34. Westmoreland v. De Witt, 130 Pa. St. 235; 18 Atl. 724; 5
L. R. A. 731.
Thome v. Mosher, 20 N. J. Eq. 257.
35. Girard v. St. Louis Car Co., 123 Mo. 358; 27 S. W. 648;
45 A. S. R. 556; 25 L. R. A. 514.
36. Duffy v. Patton, 74 Me. 396.
Hampton v. Speckenagle, 1 Ad. 704 (Penn.).
Dorsey v. Barbee, 12 A. D. 296 (Ky.).
Hoyt v. Sprague, 61 Barb. 497.
37. McPherson v. Fargo, 10 S. Dak. 611; 74 N. W. 1057; 66
A. S. R. 723.
Potter v. Taggart, 54 Wis. 401; 11 N. W. 678.
38. Wright v. Young, 6 Wis. 127; 70 A. D. 453.
CONTRACTS 59
and the party to have received it willfully evaded
him so that it could not be tendered, the facts were
held equivalent to a tender39. And where one party
is at the proper place at the proper time to make
an offer of performance and the other party inten-
tionally evades tender, it is thereby waived40. And
a waiver also occurs where the creditor refuses to
stay in the room long enough for the money to be
counted out to him41. And a waiver may occur after
the time when the tender should have -been made.
Thus, a tender of cattle under a contract within the
specified time is waived by an acceptance of them
afterward42.
B. ACTS HEO) NOT A WAIVER:— Sec. 51.
But the bare refusal to receive the amount due under
the contract, coupled with a demand for a larger
amount, have been held not to amount to a waiver
of a tender of proper performance43. And where
one refers another offering him a tender to his at-
torney, but does not refuse to accept and makes no
objection, and does not intimate that the tender
would not be required, such facts were held not to
amount to a waiver44. A refusal of a tender, but
accompanied by a demand for the production of the
money does not excuse a tender45. And a tender is
not waived where there is merely an uncommuni-
39. Borden v. Borden, 6 Ma.ss. 67; 4 A. D. 32.
40. Noyes v. Clark, 7 Paige 179 ; 32 A. D. 620.
Sharp v. Todd, 38 N. J. Eq. 329.
Southworth v. Smith, 7 Cush. 391.
Gilmore v. Holt, 4 Pick. 258.
41. Schayer v. Ix>an Co., 166 Mass. 322; 39 N. E. 1110.
42. Emery v. Langley, 1 Idaho 694.
43. Dunham v. Jackson, 6 Wend. 22.
44. Strong v. Blake, 46 Barb. 227.
45. Neiderhauser v. Ry. Co., 131 Mich. 550; 91 N. W. 1028.
60 THE LAW OF WAIVER
cated intention of the creditor not to accept the
offer46.
4. WAIVER OF FORFEITURES.
A. GENERAL RULES :— <Sec. 52. The law
winks at forfeitures; equity closes its eyes upon
them. And the disfavor in which they are held is
so great that if, by any construction, they can 'be
denied without making new contracts for parties,
that course will usually be pursued. A forfeiture is
a financial punishment provided for the benefit of
one party at the expense of the other for his derelic-
tion in the performance of some duty enjoined upon
him. And while the one upon whom such obligation
rests must see to it that the conditions he has agreed
to perform are complied with, if he would escape the
penalty provided for his failure to so perform, it is
not in every instance of his default that his adver-
sary shall be permitted to invoke the forfeiture. For
the latter may have so conducted himself as to be
the direct cause of a contractor's dereliction, and in
such event he cannot take advantage of a state of
facts that his own conduct has induced. Tf it is the
fault of the party for whose benefit a forfeiture has
been provided that some condition has not been com-
plied with, such party will not be permitted to profit
by his own wrong, and the forfeiture will be denied
him47. This is only another way of saying that a
party may waive the benefit of a forfeiture provid-
ed for his advantage. And, like other waivers, those
in this connection may occur by expression of the
46. Bluntzer v. Dewees, 79 Tex. 272 ; 15 S. W. 29.
47. Dement v. Bonham, 26 111. 158.
CONTKACTS 61
party himself, by acts signifying an intention to
forego the benefit of the provision, or by conduct
misleading to the other party and inducing an hon-
est belief in the existence of such intent. And, as
forfeitures are not looked upon with favor, if once
waived they will not be assisted by the courts.
Sec. 53. Slight acts are sufficient to show a
waiver, as, for instance, a landlord's acceptance of
rent after his right to a forfeiture for non-payment
has accrued48. And where a railroad company in-
duced a shipper to go to the expense and trouble of
making out a claim for damages as suggested by
its agent, it was held to have waived the right to a
forfeiture inserted in the contract for its benefit49.
A forfeiture will be deemed waived by any agree-
ment, declaration or course of conduct on the part
of him who is benefitted by such forfeiture which
leads the other party honestly to believe that by con-
forming thereto the forfeiture will not be incurred.
Sec. 54. A party may cause the inference of a
waiver of his right to a forfeiture by his silence
when it is his duty to speak; as where a lessee in
arrears for rent told his landlord that he would cred-
it the amount of the rent on a note owed him by the
landlord, but the latter made no reply, any right to
a forfeiture existing at that time was waived50. And
a right to a forfeiture may be waived in advance of
its accrual; for if a party should state to his con-
48. Garnhart v. Plnney, 4 Mo. App. 449 ; 93 A. D. 303.
Williams v. Vanderbilt. 145 111. 238; 34 N. E. 476; 36 A. S.
R. 486.
49. Hudson v. No. Pac.. 92 la. 231; 60 N. W. 608; 54 A. S.
R. 550.
60. Johnson v Douglas, 73 Mo. 168.
62 THE LAW OF WAIVES
tractor that a forfeiture provided for the former's
benefit would not be insisted upon, he would not later
be heard to demand the forfeiture, especially if the
statement had been acted upon by the other party51.
S'ec. 55. A waiver may also be shown where a
party entitled to a forfeiture proceeds under the
contract after the accrual of such right. Thus, a
plaintiff had conveyed certain property to the de-
fendant in consideration of his future support. He
left the premises for eleven weeks because of al-
leged breach of condition, but afterward returned
and stayed a year and a half. By proceeding under
the terms of the conveyance and accepting further
support, it was held that he waived his claim to a
forfeiture for any breach prior to his departure52.
And a party entitled to a forfeiture must proceed
to assert his right, for usually delay or other slight
circumstances will be treated as a waiver53. The
following pertinent quotation is from an insurance
case: "It may be broadly asserted that if, in any
negotiations or transaction with the insured, after a
knowledge of the forfeiture, it recognizes the con-
tinued validity of the policy, or does acts based
thereon, or requires the assured, by virtue thereof,
to do some act or incur some trouble or expense, the
forfeiture is, as a matter of law, waived. ' '54
B. IN DEEDS AND LAND CONTRACTS :—
Sec. 56. Courts are frequently called upon to con-
strue and enforce contracts for the sale of land in
51. Blair v. Blair, 48 la. 393.
62. Dunklee v. Hooper, 37 111. 225.
S3. Allen v. Dent, 4 Lea 676.
Catlin v. Wright. 13 Neb. 5." 9: 14 N. W. 530.
64. Titus v. Glens Falls Ins. Co., 81 N. Y. 410.
CONTRACTS 63
which a forfeiture is provided for the non perform-
ance of certain conditions. It is perfectly legitimate
and proper for parties to provide for such penalties,
and, in the absence of fraud, circumvention, waiver
or some other act affording a legal excuse for the
breach of the condition, courts will uphold and en-
force such terms as the parties have agreed upon.
But here, as in the case of any other right, a forfeit-
ure may be waived by the party entitled to it, and
the general rules hereinbefore announced apply in
this class of contracts. Accordingly, it has been
held that a party waives his right to a forfeiture
for a default of his vendee if he takes no steps to-
ward a rescission till the time when the contract was
to have been completed55. And in a case where a
payee agreed to an extension of time for payment,
he was held to have precluded himself from insisting
upon a forfeiture for failure of payment at maturity
unless 'be had first demanded payment56. The right
to declare a forfeiture is waived where a vendor con-
tinues to act under the contract after default, even
where time is of the essence of the contract57. And
if, after the accrual of hie right to a forfeiture, he
brings an action asking for the specific performance
of the contract, he thereby loses his right to the for-
feiture58. A forfeiture provided in a land-sale con-
tract on default in payment of the purchase price is
waived by the subsequent execution of a deed to the
65. Stcele v. Branch, 40 Cal. 13.
56. Thayer v. Meeker, 86 111. 470.
87. Baker v. Bishop, etc., 45 111. 264.
Smith v. Mohn, 87 Cal. 183 ; 25 Pae. 644.
68. Daniels v. McCagg, 32 111. 429.
64 THE LAW OF WAIVER
purchaser or his assignee by the original vendor59.
If a vendee is to pay the purchase price by a time
certain but makes default, a later acceptance of pay-
ment by the vendor is a waiver of his right to a for-
feiture60.
Sec. 57. Circumstances and the acts of tb*>
party for whose benefit a forfeiture has been pro-
vided may be sufficient from which to imply that his
right to the forfeiture has been waived. Thus, one
holding several notes for the purchase price of land,
who is entitled to a forfeiture for the non-payment
of any one of them, waives his right to such forfeit-
ure if, after default, he transfers any of the subse-
quent notes to a bona fide purchaser61. Even if time
is of the essence of a contract for the sale of land
and there has been quite a delay in offering payment
after the right to a forfeiture accrues, a vendor who
accounts with his vendee and allows the latter to
make expensive improvements and pay taxes is pre-
cluded from declaring a forfeiture after such offer
of payment62. Delay in giving notice after default
will not, of itself, constitute a waiver of a right to a
forfeiture, nor will lapse of time after default alone
be sufficient63.
Sec. 58. Conditions subsequent are frequently
inserted in deeds, and a forfeiture of the estate or
some other forfeiture provided in case of a breach
69. Alexander v. Jackson, 92 Cal. 514; 28 Pa«. 693; 27 A. S. R.
158.
80. Stow v. Russell, 36 111. 18.
Grigg v. Landls, 21 N. J. Eq. 494.
Hutchings v. Hunger, 41 N. T. 158.
€1. Iglehart v. Gibson. 56 111. 81.
«2. Allen v. Woodrull, 96 111. 11.
63. Kerns v. McKean, 65 Cal. 411; 4 Pac. 404.
CONTRACTS 65
of such a condition. A breach of thess conditions,
also, may be waived by the party entitled to their
performance. A party does waive his right to such
a forfeiture by treating the contract and the condi-
tion as still subsisting after a breach64. And the
condition once dispensed with, or its breach waived,
is gone forever and cannot later be insisted upon65.
Where there" is a condition subsequent in a deed, the
grantor may waive a right to a forfeiture and he will
be held to have done so unless he enters for condition
broken or brings ejectment66.
Sec. 59. Where a grantee agreed, under the
penalty of a forfeiture of the estate, to build a house
in a certain time, but failed to do so, the grantor still
'being in possession, no positive act was necessary on
the part of the latter in order to claim the forfeiture,
and he did not waive his right thereto by failing to
do some formal act67. "The right of entry for the
breach of a condition subsequent may be waived or
lost by laches. Therefore, where land was granted
on the condition that it should be used as a burying
ground, and that the grantees should build and keep
a good fence around it, and it was used as a burying
ground for more than forty-five years, hut no fence
was ever erected around it, and no eomplaint was
ever made of the absence of such fence, it is then
too late for the successor in interest of the grantor
14. Hubbard v. Hubbard, 97 Mass. 188.
«5. Sharon Co. v. Erie, 41 Pa. St. 341.
Barrle v. Smith, 47 Mich. 130 ; 10 N. W. 168.
Dakln v. Williams, 22 Wend. 201.
66. Ellis v. Kyger, 90 Mo. 606.
«7. O'Brien v. Wagner, 94 Mo. 93 ; 4 A. S. R. 360.
66 THE LAW OF WAIVER
to enter for condition broken"68. Where a deed con-
tained a provision that there should 'be no saloon
on the premises under penalty of forfeiture of the
estate, the grantor was held to have waived such re-
striction by subsequently conveying an adjoining
tract without such condition69. If a conveyance con-
tain a prohibition against the sale of liquor on the
premises, it is no waiver of the condition if a single
glass of liquor is sold thereon in the presence of the
grantor70.
C. IN LEASES :— Sec. 60. Waivers of rights
to forfeitures occur perhaps more frequently in
agreements between landlord and tenant than in any
other species of contracts unless it be those of in-
surance. Most leases provide some condition sub-
sequent, such as payment of rent by a certain time,
a prohibition against sub-letting, or for making cer-
tain repairs and improvements, which the tenant
must comply with upon pain of a forfeiture for his
failure. But it is the general rule that ' ' any act done
by the landlord knowing of a cause of forfeiture by
his tenant, affirming the existence of the lease, and
recognizing the lessee as his tenant, is a waiver of
such forfeiture"71. In order for a landlord to en-
force a forfeiture provided for in a lease he must
take active measures upon breach of the conditions.
He must do some unequivocal act that would signify
to the lessee in a decisive manner his election to de-
termine the lease72. But unless the facts are such
68. Scovill v. McMahon, 62 Conn. 378; 26 Atl. 479; 36 A. S. R. 350.
69. Jenks v. Palowski, 98 Mich. 110; 56 N. W. 1105; 39 A. S. R.
522.
70. Plumb v. Tubbs, 41 N. Y. 442.
71. Webster v. Nichols, 104 111. 160.
72. Read v. Tuttle, 35 Conn. 25 ; 95 A. D. 216.
Bowman v. Foot, 29 Conn. 331.
CONTRACTS 67
as to show the creation of a new term, merely per-
mitting the tenant to hold over without notice to
quit is not a waiver of a forfeiture provided for in
the lease under which the tenant entered73.
Sec. 61. The provision in a lease for a forfeit-
ure is for the benefit of the lessor, and a breach of
the condition does not ipso facto render the lease
void, but voidable at the option of the lessor, which
option must be exercised at once if at all. "Where a
lease is thus voidable, the landlord's option to avoid
it should be exercised at the proper time and
place"74. "By the terms of the lease, the term is
not void by reason of a violation of the covenants
ipso facto, but is voidable only at the option of the
lessor. He may, or not, insist upon a forfeiture, and
until he exercises the option reserved to declare or
claim a forfeiture, the term continues. It is by his
own act, and not that of the lessee, that the lease is
terminated, and it is, of course, by his own omission
to insist upon a forfeiture immediately upon viola-
tion of the covenant, or as soon as he has knowledge
of it, that he is placed in a situation in which he may
waive a forfeiture"75. And if the landlord, having
a right to declare a forfeiture on account of some
'breach of condition by his lessee, chooses to waive
the breach and continue the lease, the lessee cannot
set up his own default as a cause of forfeiture, nor
urge it as a defense to an action to affirm the lease76.
73. Calderwood v. Brooks, 28 Cal. 151.
74. Bowman v. Foot, 29 Conn. 331.
75. Walker v. Engle, 30 Mo. 131.
76. Clark v. Jones, 1 Denio 516 ; 43 A. D. 706.
Wills v. Mfg. Co., 130 Pa. St. 222 ; 18 Atl. 721.
Ray v. Gas Co., 138 Pa. St. 576 ; 20 Atl. 1065 ; 21 A. S. R. 922.
Bowyer v. Seymour, 13 W. Va. 12.
Smith v. Miller, 49 N. J. L. 521 ; 13 Atl. 39.
68 THE LAW OF WAIVER
The granting of a lease of premises to a second
lessee after default in performance of conditions by
the first lessee is not a waiver of a forfeiture for
such default, but, on the other hand, is a manifesta-
tion of an intention to insist upon the forfeiture77.
Sec. 62. Probably the most frequent occurrence
of the waiver of forfeiture by a landlord is the ac-
ceptance by him of payment of rent after the ac-
crual of his right to declare a forfeiture. And it is the
general rule that if a landlord, after condition broken
by his tenant, accept payment of rent after knowl-
edge of such breach has been brought home to him, he
waives the right to a forfeiture78. And the accept-
ance by the landlord of rent accruing after breach of
a condition is a waiver of his right to a forfeiture
on account of such breach79. Eeceiving or distrain-
ing for rent after the accrual of the right to a for-
feiture, with knowledge of such right, is a waiver of
it80. Eeceiving payment of rent in advance, know-
ing of a breach of condition by the tenant sufficient
to work a forfeiture, is a waiver of all past breaches
and operates to extend the lease for the period paid
for81. If a delay in paying rent has been acquiesced
77. Guffy v. Huklll, 34 W. Va. 49; 11 S. E. 754; 26 A. S. R. 901.
All. Oil Co. v. Brad. Oil Co., 21 Hun 26; 86 N. Y. 638.
Munroe v. Armstrong, 96 Pa. St. 307.
78. Little Rock Co. v. Shall, 59 Ark. 405 ; 27 S. W. 562.
Dahm v. Barlow, 93 Ala. 120 ; 9 So. 598.
McGlynn v. Moore, 25 Cal. 384.
79. Gomber v. Hackett, 6 Wis. 323 ; 70 A. D. 467, citing 2 Platt on
Leases, 468.
Taylor, Landlord & Tenant, Sec. 497.
Jackson v. Allen, 3 Cow. 229.
Bleecher v. Smith, 13 Wend. 530.
Collins v. Canty, 6 Cush. 415.
80. Camp v. Scott, 47 Conn. 370.
81. Brooks v. Rogers, 99 Ala. 433 ; 12 So. 61.
CONTRACTS 69
in by the landlord, and the tenant has thereby been
induced to beli'eve that forfeiture for non-payment
in time would not be insisted upon, equity will not
enforce the forfeiture82.
Sec. 63. But a right to a forfeiture is not
waived by the landlord's receiving rent from an as-
signee in bankruptcy, the assignment being a breach
of the condition of the lease83. If both parties have
habitually disregarded the provisions of a lease as
to payment of rent, default in such payment cannot
be urged as a forfeiture84. But a lessor does not
waive his right to a forfeiture by accepting payment
after notice to quit and applying it on installments
due prior to the one for the payment of which the
forfeiture is claimed85. And conditions of a con-
tinuing nature are waived only as to the past breach-
es where the landlord accepts payment of rent, and
he does not waive his right to a forfeiture for future
breaches86, But it has been held that a right of re-
entry and forfeiture must be exercised during the
term, and that failure to so exercise it is a waiver
of it87. If, after non-payment of taxes, that being
imposed upon the tenant by the terms of the lease,
the landlord accept payment of the rent, he thereby
waives his right to a forfeiture, and a continued fail-
ure to pay the taxes does not amount to a revival of
the right to declare a forfeiture88.
82. Thropp v. Field, 26 N. J. Eq. 82.
83. Med. Co. v. Currey, 162 111. 441; 44 N. B. 839; 53 A. S. R. 320.
84. West. Etc. Co. v. De Witt, 130 Pa. St. 235; 18 Atl. 724; 5 L. R.
A. 731.
85. Carraher v. Bell, 7 Wash. 81 ; 34 Pac. 469.
86. Gluck v. Blkan, 36 Minn. 80; 30 N. W. 446.
87. Cheatham v. Blinke, 1 Tenn. Ch. M5.
&8 Conger v. Durgee, 90 N. T. 594.
70 THE LAW OF WAIVEB
Sec. 64. Many leases give the landlord the right
to declare a forfeiture if the tenant sub-lets the
premises. This right may 'be waived, and it is
waived if, after its accrual, the landlord accepts or
distrains for rent accruing after the right to a for-
feiture has become fixed89. And he waives a breach of
the condition against sub-letting by accepting pay-
ment from the sub-lessee, knowing the facts as to
the sub-letting90. But it is not waived by accepting
the rent from an assignee in ignorance of the sub-
letting91. But if he knew of the stub-letting and at-
tempted to provide against it at the time, the waiver
will still be held against him92.
5. WAIVER OF THE RIGHT TO 'RESCIND.
'Sec. 65. Waiver is the counter-part of election.
To waive a right or course of conduct is to elect to
forego the benefits of that right or to pursue another
course. And it is well settled in law that a party
having the privilege of following either of two in-
consistent remedies who makes an election of one,
commences his action thereon and prosecutes it to
final judgment or receives anything of value there-
under waives the right to thereafter pursue the other
inconsistent remedy93. And it is also the rule that
89. McKildoe v. Darracott, 12 Gratt. 278.
Ireland v. Nichols, 46 N. Y. 413.
90. Traverman v. Lippincott. 38 Mo. App. 478.
91. Kew v. Tralnor, 50 111. Afp. 629 : 150 IH. 150.
92. Crouch v. Wabash Ry., 22 Mo. App. 315.
Gulf Ry. v. Settegast, 79 Tex. 256 ; 15 S. W. 228.
93. Fields v. Bland. 81 N. Y. 239.
Carter v. Smith, 23 Wia. 497.
Manser v. Jacob, 98 Mo. 331; 3 A. S. R. 531.
Ewing v. Cook, 85 Tenn. 832 ; 3 S. W.- 607 ; 4 A. S. R. 765.
Wheeler v. Dunn, 13 Colo. 4£8 ; 22 Pac. 827.
CONTRACTS 71
he cannot abandon the remedy chosen and follow the
other one94. The matter has been thus expressed:
A man may not take two contradictory positions,
and wh,ere he has the right to choose one of two
modes of redress, and the two are so inconsistent
that the assertion of one involves the negation or re-
pudiation of the other, his settled and deliberate
choice of one with knowledge or means of knowledge
of such facts as would authorize a resort to either,
will preclude him thereafter from going back and
electing again95.
'Sec. 66. These considerations apply with great
force in the rescission of contracts, and especially
those induced by fraud. But in such cases it is es-
sential to constitute a valid waiver of the right of
rescission the party should have full knowledge or
means of knowledge of the material facts, that he
should intend to affirm the contract and abandon all
right to recover for loss resulting from the fraud96.
And the defrauded party, after discovery of the
fraud has two remedies: He may rescind the con-
tract, if he can restore what he has received under
it, and sue for the consideration he has paid, or if
he has not paid anything, he can repudiate the con-
tract and rely on the fraud as a defense to an action
for the consideration ; or he may retain what he has
Bradley v. Brigham, 149 Mass. 141 ; 21 N. E. 301.
Ihomas v. Joslin, 36 Minn. 1; 29 N. W. 344; 1 A. S. R. 624.
Farwell v. Myers, 59 Mich. 179 ; 26 N. W. 328.
94. Crompton v. Beach, 62 Conn. 25; 25 Atl. 446; 36 A. S. R. 321.
Lehnjan v. Van Winkle, 92 Ala. 443 ; 8 So. 870.
Bauman v. Jaffray, 6 Tex. Civ. App. 489 ; 26 S. W. 260.
OTDonald v. Constant, 82 Ind. 212.
95. Thompson v. Howard, 31 Mich. 312.
96. Cooley on Torts, 505.
72 THE LAW OP WAIVER
received and sue for damages for the fraud, in
which case he affirms the contract but does not waive
his right to damages for the fraud97. But it has been
held that if a defrauded party, after full knowledge
of the fraud, refuses to repudiate the contract but
expressly ratifies it, he waives his right to sue for
damages98. It is otherwise if he has not full knowl-
edge of the fraud, for then his ratification does not
waive his right to damages99. And it has been said
that a party to a fraudulent contract, who is not at
fault, may waive his right to rescind and can then
sue for the damages he has sustained; by such
waiver he does not lose his right to recover for his
injury100.
Sec. 67. A party loses his right to rescind a
contract induced by fraud if he bring an action to
enforce it after knowing that he has such right1, or
if he discover the fraud during the progress of the
action and continue the case thereafter2. And if a
vendor, knowing of fraud in the contract, recover
97. Wilson v. Hundley, 96 Va. 96; 30 S. E. 492; 70 A. S. R. 837.
Baird v. Howard, 51 Oh. St. 57; 36 N. B. 732; 46 A. S. R.
550.
Bowen v. Mandeville, 95 N. T. 237.
Cottrill v. Krum, 100 Mo. 397; 13 S. W. 753; 18 A. S. R. 549.
98. Nounnan v. Sutter Land Co., 81 Cal. 1 ; 22 Pac. 515.
St. John v. Hendrickson, 85 Ind. 350.
99. Johnson v. Culver, 116 Ind. 278; 19 N. E. 129.
Kraus v. Thompson, 30 Minn. 64; 14 N. W. 266; 44 A. R. 182.
100. Tiffnay, Sales, 119.
Matlock v. Reppy, 47 Ark. 148; 14 S. W. »46.
Peck v. Brewer, 48 111. 55.
Robinson v. Siple, 129 Mo. 208 ; 31 S. W. 788.
Herrin v. Libbey, 36 Me. 357.
Pearsoll v. Chapln, 44 Pa. St. 9.
1. Acer v. Hotchkiss, 97 N. T. 395.
Nelson v. Carrington, 4 Munf. 332; 6 A. D. 519.
Pettus v. Smith, 4 Rich. Eq. 197.
2. Sanger v. Wood, 3 Johns. Ch. 416.
CONTRACTS 73
judgment against the vendee, he cannot follow the
goods either in the hands of the vendee or a pur-
chaser from him; nor can he claim the property if
he sue for the purchase price3 ; and, conversely, pay-
ment of the purchase price after knowledge of fraud
in the sale is a waiver of the right to rescind4.
Sec. 68. There is some difference among the
authorities as to whether a defrauded vendor of
goods, by attaching the goods, waives his right to
rescind the contract of sale. On the one hand, it is
said that such attachment is a complete waiver of
the right to rescind5. In the last case cited in the
above note it is said that "as the plaintiff had an
election between inconsistent remedies, as where
one action is founded on an affirmance of a voidable
contract, any decisive act of affirmance or disaffirm-
ance, if done with knowledge of the facts, deter-
mines the right of the parties once and for all ; and
that the institution of the attachment suit by plaint-
iff was such a decisive act." And it is again ex-
pressed thus: "The attachment was levied and the
action pending when the present action, which re-
pudiates the contract and has no support except on
the theory of its disaffirmance was commenced. The
Beloit Bank v. Beale, 34 N. Y. 475.
Carter v. Smith, 23 Wis. 499.
Morris v. Rexford, 18 N. Y. 552.
Lloyd v. Brews ter, 4 Paige 537; 27 A. D. 88.
O'Donald v. Constant, 82 Ind. 212.
Bulkley v. Morgan, 46 Conn. 393.
Dennis v. Jones, 44 N. J. Eq. 513 ; 14 Atl. 913 ; 6 A. S. R. 899.
Knuckolls v. Lea, 10 Hump. 577.
Bulkley v. Morgan, 46 Conn. 393.
Acer v. Hotchkiss, 97 N. Y. 395.
O'Donald v. Constant, 82 Ind. 212.
Conrow v. LiUie, lli .N. Y. »i., .. X. B. M*v,, i» .u Jti. A. uji.
74 THE LAW OF WAIVER
two remedies are inconsistent — by one the whole es-
tate of the delbtor is pursued in a summary manner,
and the payment of a debt sought to be enforced by
execution ; by the other, specific articles are demand-
ed as the property of the plaintiff. One is to re-
cover damages in respect of the breach of contract ;
the other can be maintainable only by showing that
there was no contract. After choosing between these
two modes of proceeding, the plaintiffs no longer
had an option. By bringing the first action after
knowledge of the fraud practiced, the plaintiffs
waived the right to disaffirm the contract, and the
defendants may justly hold them to their election"6.
On the other hand it is maintained that the
•bringing of an attachment suit is" not necessarily,
nor even prima facie an affirmance of the contract
nor a waiver of the right to rescind; and that the
levy of an attachment on property as that of the
defendant is not a waiver of the right of the plaint-
iff to seize the property as his own7. The courts
supporting the latter doctrine, however, seem to do
so with some qualification. They seem to indicate
that if the attachment suit were prosecuted to final
judgment the right of plaintiff to change positions
and bring an inconsistent action would be gone, but
that he could bring such action at any time before
judgment. It has been said thus: "A creditor hav-
ing elected simply to pursue one of two inconsistent
«. Conrow v. Little, supra.
7. Johnson v. Frew, 33 Hun 193.
Equitable Foundry Co. v. Hersee, 33 Hun 169.
Anchor Milling Co v. Walsh, 20 Mo. App.' 107,
Lapp v. Ryan, 23 Mo. App. 136.
Johnson-B. Co. v. Cent. Bank, 116 Mo. 558; 22 S. W. 813; 33
A. S. R. 615.
CONTRACTS 75
remedies is not bound thereby but may subsequently
dismiss and abandon before final judgment the one
first chosen, and then pursue the other in the absence
of intervening rights, injury or benefit"8.
Sec. 69. It is difficult to concur in the reason-
ing of the cases holding to the latter doctrine. We
think that a party, in possession of all the material
facts should know his own mind, that he should be
able to determine what remedy he desires to pursue,
that if he be competent to contract he should be com-
petent to say which of two remedies it is to his ad-
vantage to follow, and once having determined there-
on, he should be required to abide the result of his
own judgment, and not be permitted to play fast
and loose either during the pendency of the action
or after the final judgment therein. For by an at-
tachment he says that the property is that of the de-
fendant. The proceeding is re-enforced by the so-
lemnity of an affidavit, and it is hardly in keeping
with the requirements of good faith to permit him
later to retract his declaration thus solemnized.
And, in fact, under such doctrine there is nothing to
prevent him from dismissing even his second action
if he should, after filing it, conclude it not to be to
his best interests, and again resort to his first action
or even enter a new form of suit. The spirit of fair
play demands the application of the well -settled rule
that a defrauded party has but one election to re-
scind or" affirm the contract ; a'nd his election, once
made, is final and conclusive9.
8. Johnson-B. Co. v. Mo. Pac. Ry., 126 Mo. 344; 28 S. W. 870;
47 A. S. B. 675.
9. Grymes v. Sanders, 93 U. S. 55.
70 THE LAW OF WAIVEB
Sec. 70. The authorities are agreed, however,
that there cannot be an election of remedies, or a
waiver of fraud or the right to rescind a contract
induced 'by fraud unless the party had full knowl-
edge or means of knowledge of all the material facts
in the case10. This is under the rule applicable to all
waivers that knowledge of a right is an absolute pre-
requisite to an abandonment of the right. But after
knowledge of the fraud is brought home to a party,
he must exercise his right to rescind the contract
within a reasonable time thereafter or the right will
be forever lost to him11. Or, as it has been said, a
party must exercise his right promptly or it will be
denied him12. And if he waits a considerable length
of time, he will be held to have waived the right by
acquiescence13. What is a reasonable time depends
Bigelow on Fraud, 436.
Hart v. Miller, 95 Va. 321 ; 27 S. B. 831.
Wilson v. Hundley, 96 Va. 96; 30 S. E. 492; 70 A. S. R. 837.
Bigelow on Estoppel, 5th Ed. 573.
Herman on Estoppel, (1886) 1177.
Thweatt v. McLeod, 56 Ala. 375.
Evans v. Montgomery, 50 la. 235.
Bassett v. Brown, 105 Mass. 551.
10. Sanger v. Wood, 3 Johns. Ch. 421.
Connlhan v. Thompson, 11 Mass. 270.
Terry v. Munger, 121 N. Y 161; 24 N. E. 272; 18 A. S. R. SOS.
Bulkley v. Morgan, 46 Conn. 393.
11. Bank v. Hiatt, 58 Cal. 234.
Whitcomb v. Denio. 52 Vt. 382.
Wilbur v. Flood, 16 Mich. 40.
Morgan v. McKee, 77 Pa. St. 228.
Neblett v. McFarland, 92 U. S. 101.
Cookingham v. Dusa, 41 Kans. 229 ; 21 Pac. 95.
Gatllng v. Newell, 9 Ind. 572.
Taylor v. Short, 107 Mo. 384; 17 S. W. 970.
1*. Hall v. Fullerton, 67 111. 450.
White v. Dodds, 42 Barb. 565.
13. 2 Pomeroy Eq. Jur. 499 and 817.
Bassett v Salisbury Mfg. Co., 47 N. H. 426.
Tash v. Adams. 10 Gush. 252 (Mass.).
Cobb v. Hatfleld. 46 N. T. 533.
CONTRACTS 77
on the facts and circumstances of each particular
case. Delays for one and one-half14, three15, and
eight years16 have been held fatal to the right to re-
scind.
Sec. 71. It is further the rule that one desiring
to be relieved from a contract induced by fraud must
not only act promptly in repudiating the contract,
but he must not do any act evidencing an intention
to be bound by it. Such act will constitute a waiver
of the right to rescind. For instance, remaining in
possession of the subject-matter of the contract17,
making payments18, and asking extensions of time19
have been held sufficient to evidence a ratification,
and, therefore, to constitute a waiver of the right
to rescind. And the same result follows the
continuing to deal with the property after knowledge
of fraud in its sale as if the contract still subsisted20.
But it is said that mere possession for a considerable
time will not of itself amount to a waiver of the right
to rescind21. And neither does a sale of part of the
property amount to a waiver if the proceeds are ac-
counted for22. So, receiving part of chattels under a
14. Hammond v. Wallace, 85 Cal. 522 ; 24 Pac. 837 ; 20 A. S. R. 234.
16. Blackman v. Wright, 96 la. 541; 65 N. W. 843.
16. Boyer v. East, 161 N. Y. 580 ; 56 N. E. 114 ; 76 A. S. R. 290.
17. Dennis v. Jones, 44 N. J. Eq. 513; 14 Atl. 913; 6 A. S. R. 899.
Knuckolls v. L-ea, 10 Hump. 577.
18. Ruhl v. Mott, 120 Cal. 668 ; 53 Pac. 304.
Delano v. Jacoby, 96 Cal. 275; 31 Pac. 290; 31 A. S. R. 201.
19. Delano v. Jacoby, 96 Cal. 275; 31 Pac. 290; 31 A. S. R. 201.
SO. Bassett v. Brown, 105 Mass. 551.
1 Story's Eq. Jur. (13th), p. 227.
Schubber v. Dletz, 83 N. Y. 300.
McClean v. Clapp, 141 U. S. 429.
Marshall v. Gilman, 47 Minn. 131; 49 N. W. 688.
21. Neblett v. McFarland, 92 U. S. 101.
Goodrich v. Lathrop, 94 Cal. 56 ; 29 Pac. 329 ; 28 A. S. R. 91.
22. Tarkington v. Purvln, 128 Ind. 182; 25 N. E. 879; 9 L. R. A.
607.
78 THE LAW OF WAIVER
fraudulent contract is not a waiver of the right to
damages23. But retaining the benefits of a fraudulent
contract amounts to a waiver of the right to rescind2^
And if a party waive his right to rescind, he at the
same time loses his right of stoppage in transitu25.
If a party continue to carry goods to a certain place
after discovering the owner has misrepresented the
distance, he waives the right to rescind his contract
to carry the goods26.
A party desiring to rescind a contract cannot
hold on to such part of what he has received under it
as is desirable to him and avoid the residue ; and the
rule is that he must return what he has received or he
waives the right to rescind27.
23. Mallory v. Leach, 35 Vt. 156; 82 A. D. 625.
Haven v. Neal, 43 Minn. 315; 45 N. W. 612.
24. Bowman v. Ayers, 2 Idaho 305; 13 Pac. 346; and 2 Idaho 465'
21 Pac. 405.
25. Kearney, etc., Co. v. Union Pac., 97 la. 719; 66 N. W. 1099;
59 A. S. R. 434.
26. S. & S. Ry. Co. v. Row, 24 Wend. 74; 35 A. D. 588.
27. Bowman v. Ayers, supra.
BELLS AND NOTES 79
CHAPTER 3.
BILLS ANiD NOTES.
1. IN GENERAL ......................
2. WAIVER CONTAJNEiD IN THE INSTRUMENT _
A. On face of instrument ............ 74
B. Waiver in indorsement ........... . 75
3. ORAL WAIVER —
A. Concurrently with indorsement ......... , 76
B. Subsequently to indorsement, but prior to
maturity ....................... _ 73
C. At maturity ...................... t 79
D. After maturity ........................ 80
4. WAIVEIRS AFTER DE1FAULT —
A. By promise to pay —
(1 ) Sufficiency of promise ............. 81
(2) Conditional promises .............. 85
(3) Insufficient promises ............. 86
B. Knowledge essential to promise ........... 88
(1) Whether promise presumes knowledge 90
(2) Knowledge of legal effect of holder's
default .......................... 94
C. Payment or part payment as waiver ........ 95
D. Receipt by indorser of money, property or
other security as waiver ................ 97
IB, Waiver by conduct ..................... 104
5. CONSIDERATION FOR WAIVER .............. 105
6. WH'ETHEIR WAIVER IS WITHIN STATUTE OF
FRAUDS .......................... ......... 109
7. EXTENT OF WAIVER ........................ 110
1. IN GENEBAL:--Sec. 72. As far as it is
applicable to commercial paper, the law of waiver has
to do almost solely with its presentment for payment,
protest and notice. And it follows that a considera-
80 THE LAW OF WAIVER
tion of the subject involves a dealing chiefly with the
parties secondarily liable on the paper. Such parties
have an absolute right to the formalities required by
law to render their liability fixed, and, unless excused
by some act of their own, these formalities must be
complied with or the parties will be released from the
paper. But the holder of such paper is in many in-
stances and under many circumstances absolved from
his duty in fixing liability upon the parties secondar-
ily liable, and the liability of the latter may become
absolute even in the absence of presentment, protest
and notice. Prompt presentment, protest and notice
are requirements of the law existing solely for the
benefit of a drawer or indorser of a bill or note. It
is wholly in their province to determine whether they
will insist upon the fulfillment of these requirements.
They may dispense with such formalities by express
agreement, or by language or conduct clearly and
reasonably disclosing an intention not to insist upon
them. In either of such events it becomes unneces-
sary for the holder of a commercial instrument to
take the steps otherwise required, for by the agree-
ment or conduct of the one entitled to requir these
steps they have been waived, and it would be a fraud
upon the holder to permit him to suffer through the
inconsistent language or conduct of the drawer or
indorser.
Sec. 73. A waiver of presentment, protest and
notice may be made by him who is entitled to require
it either orally or in writing; and whether the one
or the other, the waiver may be expressed in direct
and positive terms, or it may result from an under-
standing between the parties from which it is rea-
sonably to be inferred that a waiver was intended,
BILLS AND NOTES 81
or it may be shown by custom28, or implied from con-
duct indicating that these steps would not be re-
quired. Where statutory provisions exist governing
the taking of these formal steps, of course these pre-
vail29. And where a waiver has occurred, proof
thereof is equivalent in every way to the taking of
the steps30. But it is essential to every waiver of
presentment, protest and notice that at the time
thereof the (party against whom the waiver is sought
to be established must have knowledge of the facts
discharging him from liability, or at least means
whereby he could acquire such knowledge. Without
being aware of the facts, no waiver can be imputed
to him31. But it is not requisite that he should have
knowledge of the legal effect, for he will be bound
by his waiver whether he had knowledge of the law
or not32, although such has been denied by a great
number of courts under a holding that the one
against whom the waiver is sought to be invoked
must, at the time of the alleged waiver, know the law
as well as the facts33. The weight of judicial think-
28. Quaintance v. Goodrow, 16 Mont. 376 ; 41 Pac. 76.
Glidden v. Chamberlin, 167 Mass. 468 ; 46 N. E. 103 ; 57 A. S. R.
479.
Annville Bank v. Kettering, 106 Pa. St. 531; 51 A. R. 536.
Hyde v. Stone, 61 U. S. 20 How. 17 ; 15 L. Ed. 874.
29. Thomas v. Mayo, 56 Me. 40.
50. Pugh v. McCormick, 81 U. S., 14 Wall. 361; 20 L. Ed. 789.
Perry v. Rhodes, 2 Cranch C. C. 37.
51. Norris v. Ward, 59 N. H. 487.
Tickner v. Roberts, 11 La. 14 ; 30 A. D. 706.
Lilly v. Petteway, 73 N. Car. 358.
Low v. Howard, 11 Gush. 268 (Mass.).
Baskervlll v. Harris, 41 Miss. 535.
82. Hughes v. Bowen, 15 la. 446.
Morgan v. Peet, 41 III. 347.
Third Bank v. Ashworth, 105 Mass. 503.
•S. Spurlock v. Union Bank, 4 Hump. 336 (Tenn.).
Freeman v. O'Brien, 38 la. 407.
THE LAW OF WAIVER
;v ?
- •« v f- • "ii •
ing is in favor of the rule that knowledge of the law
is not essential to a valid waiver, and, in fact, no
good reasons exist for making here an exception to
the rule that ignorance of the law is no excuse. The
greater number of cases are to the contrary.
2. WAIViBR CONTAINED IN THE INSTRUMENT.
A. ON FACE OF INSTRUMENT:— See. 74.
An express waiver of presentment, protest or notice
is frequently embodied in a 'bill or note, and in case
this is done the waiver is effectual against an in-
dorser in 'blank who is also the payee34. For by his
indorsement he makes the contract on the face of
the instrument his own and adopts its terms. And
the same result follows whatever the provision on
the face of the instrument may be, provided the
word® used fairly show an intention that either pre-
sentment, protest or notice shall be dispensed with,
as where on the face of the instrument such ex-
pressions are used as "presentation and protest
waived," " demand, protest and notice of protest
waived," "the makers, indorsers and guarantors
severally waive presentment for payment, notice of
non-payment, protest and notice of protest." Such
provisions are valid waivers as against drawers and
indorsers, as they assume the liabilities attaching to
the instruments by so becoming parties thereto36.
And while this is especially true if the waiver ex-
34. Phillips v. Dippo, 93 la. 35; 61 N. W. 216; 57 A. S. R. 254.
85. Citz. Bank v. Millet. 103 Ky. 1 ; 44 S. W. 3<S6 ; 82 A. S. R. 548.
State, etc., v. Hughes, et al., 19 Ind. A-pp. 266; 49 N. E. 393.
Woodward v. Lowry, 74 Ga. 148.
Smith v. Lockbridge, 8 Bush. 423 (Ky.).
83
pressly include the drawer or indorser36, it is yet
true without this, for an indorsement implies a
knowledge of all the instrument contains and pre-
cludes any defense 'based on matters shown on its
face37.
B. WAIVER IN INDORSEMENT:— Sec. 75.
It is said that that which is written on the back of
an instrument, as well as that written on the face, if
relating to the contract, becomes a part of it, and a
construction must be given the whole instrument in
order to determine liability38. 'So, where, on the
back of a note were printed the words "The indor-
sers waive presentment, protest and notice of dis-
honor ' ', and the payee indorsed his name in another
place entirely disconnected with the memorandum,
and the note was transferred, it was held that the
memorandum was a part of his contract and that he
was bound by the waiver39. Somewhat contrary to
this, however, it has been held that an indorsement
is a contract separate and distinct from the instru-
ment itself, although embodying its terms, and that
each indorsement is independent of all others and
speaks only for itself40. Under this latter doctrine
each indorser is liable only for such indorsement as
he himself makes, independent of the indorsements
that have preceded his; so that if one indorser fol-
36. Loveday v. Anderson, 18 Wash. 322 ; 51 Pac. 463.
Iowa Bank v. Sigstad, 96 la. 491 ; 65 N. W. 407, citing 2 Daniel
Negot. Inst., Art. 1092.
37. Durant v. Pierson, 124 N. Y. 444; 26 N. E. 1095; 12 L. R. A.
145.
38. Farmers !3ank v. Ewing, 78 Ky. 264 ; 39 A. R. 231.
39. Farmers Bank v. Ewing, supra.
Polo Mfg. Co. v. Parr. 8 Neb. 379 ; 30 A. R. 830.
40. Woodman v. Thurston, 8 Gush. 157.
84 THE LAW OP WAIVES
low his signature with such statement as " Present,
ment waived," " waiving demand and notice," "I
waive demand, ' ' or any such expression intended as
a waiver, subsequent indorsers do not make them-
selves subject to the waiver unless their indorsement
specially declares so41. But in our opinion the rule
Should be turned the other way, and an indorser who
writes his name, even with nothing added, under the
indorsement preceding his, should be held to the con-
tract binding the previous indorser which he has, by
becoming an indorser, adopted. If a subsequent in-
dorser desires to relieve himself from the burdens
of such a previous indorsement, he should attach to
his signature some form of words manifesting an in-
tention to require the legal formalities of present-
ment, {protest and notice to be complied with42. As
was seen above, an indorser makes the contract con-
tained in the face of the instrument his own. The
first indorser takes up the contract of the maker in
case of default. The second stands behind the first,
the third 'behind the second, and thus through the
entire line of indorsements. And to say that one in-
dorser can assume part of the contract of his im-
mediate predecessor and not be bound by the rest
of it without a special expression to that effect, is,
in our opinion, limiting the proper scope of the
waiver of these formalities.
3. ORAL WAIVER.
A. CONCURRENTLY WITH INDORSE-
MENT:— Sec. 76. The courts are hopelessly di-
41. Jackson Bank v. Irons, 18 R. I. 718; 30 Atl. 420.
42. Parshley v. Heath, 69 Me. 90.
See: Johnson v. Parker, 86 Mo. App. 660.
BILLS AND NOTES 85
vided in their opinions as to whether an oral waiv-
er of presentment, protest and notice can be made
by an indorser at the time of his indorsement. On
the one side, it is contended that permitting evidence
of an oral waiver contemporaneous with indorse-
ment, is a violation of the rule forbidding a written
instrument to be varied or contradicted by parol;
and a violation of the requirement that the written
instrument shall contain the entire agreement of the
parties at the time of its execution. And, as has
been said, the law requires that the paper shall tell
its own story43. The courts holding to these theories
deny the power of an indorser to make an oral waiv-
er at the time of indorsement of his right to require
the presentment, protest and notice otherwise de-
manded by law44. On the other side, however, it is
said that evidence of an oral waiver at the time of
indorsement is not a variation from the terms of a
written instrument; that the written contract is
merely a promise to pay the debt after the exercise
of due diligence against the maker ; that by such oral
waiver the measure of diligence to be required of
the indorsee has been settled; and if, at the time of
the indorsement, the indorser promises to pay the
43. Rodney v. Wilson, 67 Mo. 123.
44. Farwell v. St. Paul Trust Co., 45 Minn. 495; 48 N. W. 326;
22 A. S. R. 742; citing:
Bank of U. S. v. Dunn, 6 Pet. 51 (U. S.).
Renner v. Bank, 9 Wheat. 581.
Dale v. Gear, 38 Conn. 15 ; 9 A. R. 353.
Bartlett v. Lee, 33 Ga. 491.
Barry v. Morse, 3 N. H. 132.
Charles v. Denis, 42 Wls. 56; 24 A. R. 383.
Bank v. Smith, 27 Barb. 489.
Campbell v. Robbins, 29 Ind. 271.
To same effect, see : Torbert v, Montague, 38 Colo. 325 ; 87 Pae.
1146.
86 THE LAW OP WAIVER
note absolutely, or to pay it if the maker does not, or
if any other such understanding exists, the holder
will be excused from the necessity of making demand
or protest or of giving notice.
Sec. .77. While there are reasons not to be
passed over lightly in the doctrine first announced,
and while it is sustained by a weighty line of author-
ities45, still the other line of cases seem to us to be
more in accordance with the reasoning and princi-
ples governing the waiver of these formalities in
other connections and by other means, and we be-
lieve the greater number of courts have followed
this doctrine48.
B. SUBSEQUENT TO INDORSEMENT,
BUT PRIOR TO MATURITY -.—See. 78. An
oral waiver of presentment, protest or notice may
be made after the indorsement of the paper, either
by an express agreement to that effect or by lan-
guage from which that effect is to be adduced47.
45. Foley v. Emerald Co., 61 N. J. L. 430; 39 Atl. 650.
Barry v. Morse, 3 N. H.; 132.
Beeler v. Frost, 70 Mo. 186.
Kern v. Van Phul, 7 Minn. 74.
Johnson v. Ramsey, 14 Vroom 279 ; 39 A. S. R. 580.
Wright v. Liesenfeld, 93 Cal. 90 ; 28 Pac. 849.
46. Hazard v. White, 26 Ark. 174.
Sloan v. Gibbes, 56 S. Car. 480; 35 S. E. 408; 76 A. S. R. 559;
citing: 2 Daniel Negot. Inst. 1093.
1 Parsons, Notes & Bills, 584.
Story on Bills, Art. 317.
Qiaintance v. Goodrow, 16 Mont. 376; 41 Pac. 76.
Cummings v. Kent, 44 Oh. St. 96 ; 4 N. E. 710.
Ahnvllle Bank v. Kettering, 106 Pa. St. 531 ; 51 A. R. 536.
Lane v. Steward, 20 Me. 98.
Schmeid v. Frank, 86 Ind. 255.
McMonigal v. Brown, 45. Oh/ St. 499 ; 15 N. E. 860.
fy Hibbard v. Russell, 16 N. H. 410; 41 A. D. 733.
Free v. Kierstead, 16. Ind. 91.
BELLS AND NOTES 87
The form of the expression is immaterial, the es-
sential matter being the appearance of an intention
to dispense with these steps. Thus, where the draw-
er of a bill told the holder to hold it without pre-
sentment for an indefinite time, it was held that such
was a waiver of presentment48 ; also where the draw-
er or indorser knows that payment will not be made
at maturity of the instrument and so informs the
holder49; also a request by an indorser for more
time, with knowledge that the maker had absconded
and would not pay50 ; and a request to let a note run,
together with a statement by the indorser that he
would pay it when called for51 ; and where indorsers
of a note tell the holder, prior to its maturity, not to
do anything with it and they will pay it52 ; where in-
structions were given eighteen months before ma-
turity of an instrument not to protest it, with an
assurance that it would be paid when due53; have
each been held sufficient to amount to a waiver of
these stefps. An indorsee of a note told his immedi-
ate indorser that he had no confidence in the other
parties to the note and should look wholly to him.
The latter replied that he would take it up when due
if it was not paid by any other party. This was held
a waiver of the right to notice of dishonor of the
48. Sheldon v. Chapman, 31 N. Y. 644.
49. Minturn v. Fisher, 7 Cal. 573.
Hunter v. Hoom, 64 Barb. 468.
50. Leffingwell v. White, 1 Johns. Ch. 99.
51. Hale v. Danforth, 46 Wis. 555; 1 N. W. 284.
52. Markland v. McDaniel, 51 Kans. 350 ; 32 Pac. 1114 ; 20 L. R.
A. 96.
53. Sigerson v. Mathews, 20 How. 49,6 (U. S.).
See: Cady v. Bradshaw, 116 N. T. 191; 22 N. E. 371.
Isham v. McClure, 58 la. 515.
89 THE LAW OF WAIVER
note64. But where it was understood between the
indorser and indorsee of a note that if the latter
could not collect it from the maker he would come
back to the indorser, such was held not to show a
waiver of notice of non-payment55. And the maker
and holder of commercial paper cannot by any ar-
rangement between themselves affect the rights of
the indorser56. The indorser or drawer has the mat-
ter within his own hands to say what degree of dili-
gence shall be exercised by the holder in fixing lia-
bility in case of the default of the maker or acceptor.
If he desire to consider as sufficient less diligence
than that required by law, this is a matter of which
he has full control and may circumscribe the legal
requirements or dispense with them altogether by
an oral waiver made between the time he attaches
his name to the instrument and the maturity there-
of.
C. AT MATUBITY:— Sec. 79. On the day
payment is due by the terms 6f a commercial instru-
ment, the indorser or drawer may orally waive or
render unnecessary the formalities of presentment,
protest or notice as effectually as he could have done
previously thereto. The same facts which would
amount to a waiver prior to maturity will consti-
tute a waiver by occurring on the day of maturity.
Thus, where an indorser informed the holder that
it would be useless to call upon the maker, demand
and notice were held thereby waived as to such in-
54. Boyd et al. v. Cleveland, 4 Pick. 525 (Mass.).
Lane v. Steward, 20 Me. 98.
65. Wright v. Lelsenfeld, 93 CaL 90; 28 Pac. 849.
56. Story on Notes, 291.
BILLS AND NOTES 89
dorser57. And where an indorser admits his liabil-
ity at maturity of the note and offers to " arrange
the matter," and afterward by his conduct shows
that he considers himself bound, such acts amount
to a waiver of demand and notice58. So, one who,
on indorsing a note, tells the indorsee to look to him
alone for payment, and on the last day of grace and
subsequently promises to pay the note and asks not
to be pressed, waives demand and notice of non-pay-
ment by the maker59. A request on the day of ma-
turity that the instrument be not protested, is, of
course, a waiver of, such protest and, therefore,
necessarily of the other formal stqps in fixing lia-
bility60.
D. AFTER MATURITY :— See. 80. A waiv-
er of presentment, protest or notice may be made
orally after maturity of commercial paper as well
as before61, and any recognition of liability or evi-
dence of an intention to pay will be sufficient to con-
stitute a waiver whether it be by special agreement
or by conduct from which continued liability is to be
inferred. The most frequent occurrence of an oral
waiver after maturity, however, is that produced
by a special promise to pay, and on account of the
importance of such promises, they will be treated
separately in the succeeding sub-division.
67. Barker v. Barker, 6 Pick. 80 (Mass.).
68. Byles on Bills, 237.
Moyer's Appeal, 87 Pa. St. 129.
69. Sheldon v. Horton, 53 Barb. 23.
Qiaintance v. Goodrow, 16 Mont. 376; 41 Pac. 76.
Markland v. McDanlel, 51 Kans. 350; 32 Pac. 1114; 20 L. R.
A. 96.
60. Scott v. Greer, 10 Pa. St 101.
61. Yea*er v. Farwell, 86 U. 8., IS Wall. 6 ; 20 L. Ed. 476.
Hinge v. Kinball, 124 Mass. 209.
90 THE LAW OF WAIVER
4. WAIVEIR AFTER DEFAULT.
A. BY PBOMISE TO PAY:— (1) SUFFI-
CIENCY OF THE PROMISE :— Sec. 81. The con-
sideration of the cases involving facts dispensing
with the legal formalities of presentation, protest
and notice and fixing liability, in their absence,
upon him who, otherwise, would be entitled to in-
sist upon them presents two distinct doctrines upon
which liability still exists despite the lack of compli-
ance with these required formalities. One is that a
legal ^presumption arises from the conduct of an in-
dorser or drawer that these steps have been taken;
the other is that by his conduct he has waived the
taking of such steps. The doctrines of presumption
and waiver rest upon entirely different grounds, al-
though in many adjudications the distinction be-
tween them has not been clearly drawn nor adverted
to. The former rests upon our common experience
that men will not promise to do what they are under
no obligation to do and what they receive no consid-
eration for doing, and therefore a promise after
laches of the holder in regard to such legal steps is
presumptive evidence that the indorser knows that
all things have been rightly done to hold him.
Waiver is the opposite of this. The indorser is held
on the ground that he expressly waives the defense
which he might have set up. But no one can waive
anything, of the existence of which he has no notice,
and, therefore, he must be conscious at the time of a
new promise of all the facts which are in law essen-
tial to discharge him from liability82. If the doc-
€2. Glassford v. Davis, 36 N. J. L. 348.
BILLS AND NOTES 91
trine of presumption prevails, its only effect is to
shift the burden of proof. The plaintiff ma^y rest
uipon the new promise and thus throw upon the in-
dorser the double burden of showing laches and his
want of knowledge thereof63.
Sec. 82. But we are concerned here with waiv-
ers only. Presentment, protest and notice thereof
may be waived by him entitled to have these steps
taken as effectually after maturity of the paper on
which he is holden as 'before its maturity, and when
once waived, his liability becomes absolutely deter-
mined and he cannot urge the lack of demand, pro-
test or notice as a defense.
Sec. 83. The most frequent occurrence of waiv-
er after maturity of the paper and default of the
holder in complying with these requirements is in
the case of a new promise to pay made by the
indorser or drawer. But to amount to such
a waiver and to entitle the holder to re-
cover notwithstanding the requisite formalities have
not been complied wijth, the promise to pay
must be unequivocal and unconditional, or, if con-
ditional, it 'must be accepted on the conditions which
it involves64. But the promise need not be express ;
it is sufficient if by reasonable intendment the lan-
63. Hazard v. White, 26 Ark. 280.
Lewis v. Brehme, 33 Md. 412.
Dickerson v. Turner, 12 Ind. 228.
•4. Isbell v. Lewis, 98 Ala. 550; 13 So. 335.
Lary v. Young, 13 Ark. 401 ; 58 A. D. m.
State Bank v. Bartle, 114 Mo. 27$ ; 21 S.' W.
Schley v. Merritt, 37 Md. 352.
Torbert v. Monta&ue, 38 uolo. 325 ; 87 Pac.
92 THE LAW OF WAIVEB
guage imports or implies a promise to pay65. Thus,
where an indorser was called upon to pay a note and
stated that in a few days he would arrange it, this
was held an unconditional promise to pay and, there-
fore, a waiver of the laches of the holder66. So, a
statement by the indorser that he expects he will
have to pay the note, coupled with a request of the
holder that he try to collect it from the maker, will
operate as a waiver67. And the same effect was held
to have resulted where the indorser procured a third
person to purchase the note, concealing the fact of
a discharge by the laches of the holder68. A waiver
was also held where the indorser requested a few
days time, at which date he would pay69, and where
a promise was made to arrange so that a draft
could be paid70, and a statement by the Endorser that
he would pay when it was in his power71, and prom-
ising to send funds with which to take up a bill72.
And a waiver was deduced from the action of an iri-
dorser in telling the holder that he was collecting
money for the maker and not to be uneasy about the
note as he would see that it was paid73. Likewise,
where he agreed to pay the note if the holder would
let it run past maturity74.
65. Reynolds v. Douglass, 37 U. S., 12 Pet. 497 ; 9 L. Ed. 1171.
Zacharle v. Kirk, 14 La. Ann. 436.
66. Sigerson v. Mathews, 61 U. S., 20 How. 496; 15 L. Ed. 989.
67. Parsons -o. Dickinson, 23 Mich. 56.
68. Libbey v. Pierce, 47 N. H. 309.
69. Hopkins v. Liswell, 12 Mass. 52.
70. Bryam v. Hunter, 36 Me. 207.
71. Donaldson v. Means, 4 Dall. 109.
72. Read v. Wilkinson, 2 Wash. C. C. 514.
73. Bryant v. Wilcox, 49 Cal. 47.
Jones v. Roberts, 191 Pa. St. 152; 43 Atl. 123.
74. Hale v. Danforth, 46 Wis. 554; 1 N. W. 284.
And see: Souther v. Kenna Bros., 20 R. I. 645; 40 Atl. 788.
BILLS AND NOTES 93
Sec. 84. Where the indorser asks for an ex-
tension of time this is in effect a recognition of his
liability and an implied promise to pay, and it has
been held sufficient to amount to a waiver of present-
ment and notice75. It is decidedly so where the re-
quest is coupled with a promise to pay if the request
is granted76. And the same is true of a promise that
if the holder would wait a few days the note would
be fixed up77, or notifying the indorsee at the time
of transfer that the time of payment had been ex-
tended by agreement, and requesting delay in pre-
sentment78, or asking that suit be delayed till the
maker could see the holder79 ; and an agreement be-
tween the parties for an extension of time has the
effect of waiving or dispensing with these steps80.
(2) CONDITIONAL PROMISES :— Sec. 85.
Where, after the laches of the holder of a 'bill or
note has discharged a drawer or indorser, the latter
promises to pay, to which promise is attached some
condition, the promise does not amount to a waiver
of the requirements of presentment, rprotest and
notice unless the condition be accepted ; but upon ac-
ceptance of the condition the promise becomes ab-
Leonard v. Gary, 10 Wend. 504.
Taunton Bank v. Richardson, 5 Pick. 436 (Mass.).
76. Cady v. Bradshaw, 116 N T. 188 ; 22 N. E. 371 ; 5 L. R. A. 6ST.
Sheldon v. Horton, 43 N. Y. 93 ; 3 A. R. 669.
Walker v. Graham, 21 La. Ann. 209.
Amoskeag Bank v. Moore. 37 N. H. 539 ; 75 A. D. 156.
T«. Hunter v. Hook, 64 Barb. 468.
77. Bush v. Gilmore, 45 App. Div. 89; 61 N. Y. Supp. 682.
78. Glaze v. Ferguson, 48 Kans. 157; 29 Pac. 396.
79. Gove v. Vlnlng, 7 Met. 212; 39 A. D. 770.
80. Ross v. Hurd, 71 N. Y. 14.
Sebree Bank v. Moreland, 96 Ky. 150; 28 S. W. 153 ; 29 L. R.
A. 305.
Ala Bank v. Rivers, 116 Ala. 1; 22 So. 58; 67 A. S. R. 9S.
94 THE LAW OF WAIVES
solute and amounts to a waiver of these steps. Thus,
where there was an offer of payment of part of a
note, which offer was not accepted, it was held in-
sufficient to constitute a waiver81. The same was
held of an offer to give a new note82, to pay in con-
federate money83, or in depreciated currency84; and
any other condition attached to a promise will have
the same effect65.
(3) IN-SUFFICIENT PROMISES r-^Sfec. 86.
The promise of an indorser or drawer of an instru-
ment, made after its maturity and after default of
the holder regarding presentment, protest and no-
tice, must be positive, unequivocal and unconditional
(unless the conditions are accepted), or it will not
be a waiver of the default of the holder. Thus, the
mere statement of the party that he would rather
pay the note than be sued will not be sufficient to
constitute a promise to pay a note from which he
has been discharged by the laches of the holder88.
And a mere admission that the note would hare to
be paid could not be construed as a waiver of the
laches87, nor could a statement that the note must be
paid88, nor a remark to a third person that the in-
dorser would see the note paid89. Nor, is an offer
to give collateral security for the promissor's lia-
81. Long v. Dismer, 71 Mo. 452.
82. Agan v. M'Manus, 11 Johns. 180.
83. Tardy v. Boyd, 26 Gratt. 631.
84. Newberry v. Trowbridge. 13 Mich. 275.
85. Isbell Co. v. Lewis Co.. 98 Ala. 550 ; 13 So. 335.
Ross v. Kurd. 71 N. Y. 14.
86. Keyes v. Fenstermaker. 24 Cal. 32*.
87. Rosson v. Carrol, 90 Tenn. 90; 16 S. W. 66; 12 L. R. A. 727.
88. Creamer v. Perry, 17 Pick. 332; 28 A. D. 297.
89. Glidden v. Chamberline, 167 Mass. 486 ; 46 N. E. 103 ; 57 A. S.
R. 479.
Miller v. Hackley, 6 Johns. 375 ; 4 A. D. 372.
BILLS AITD NOTES 95
•bility as indorser sufficient90 ; nor a mere request not
to press the maker of the note91. So, a statement
that the indorser had been very unfortunate in in-
dorsing the note, that the estate of the maker owed
him money and that he had no means of paying the
note 'but from that source, was held insufficient to
constitute a new promise to pay where he had pre-
viously been discharged through the holder's
laches92. And a letter giving) an account of the
writer's circumstances and containing a statement
that under such circumstances he could not give a
bill for the amount, was held insufficient as a waiv-
er93. So, the assurance of the indorser that he would
stand good for payment94, or his parol representa-
tion that he would treat the matter as his own and
see that it was paid at maturity95, have been held
insufficient as promises constituting a waiver.
Sec. 87. It has been held, too, that an agree-
ment to permit an extension of time for payment
did not amount to a waiver96, nor was any
waiver implied from the indorser 's requesting
the indorsee not to bring suit against him during his
absence from home if the maker failed to
pay the note, as such request itself implied
that the indorser expected the holder to take the
proper steps against the maker of the note97.
90. Carter v. Burley, 9 N. H. 558.
91. Whittier v. Collins. 15 R. I. 90; 23 Atl. 39 and.*7.
Prentiss v. Danielson, 5 Conn. 175 ; 13 A. D. 52.
92. Varies t>. Depass, 2 La. Ann. 16.
93. Sherrod v. Rhodes, 5 Ala. 683.
94. Freeman v. O'Brien, 38 la. 406.
95. Bird v. Kay, 40 App. Div. 533; 58 N. T. Supp. 170.
96. Norton v. Lewis, 2 Conn. 478.
Michand v. Lagardw, 4 Minn. 43. ,
97. Button v. Bratt, (Ark.) ; 11 S. W. 821.
96 THE LAW OF WAIVER
Where an indorser 'before maturity of the note is in-
formed 'by the holder that the maker denied liabil-
ity and had told him they would not pay it, and the
indorser stated that he did not have the money to
pay the note but that he was liable and that if the
holder would sue the maker, and should fail to re-
cover from him, that he would pay it himself, the
indorser was held not to have thereby waived pre*-
sentment and notice68.
B. KNOWLEDGE OF DEFAULT ESSEN-
TIAL TO PROMISE:— Sec. 88. It is the unani-
mous opinion of the courts that a promise of ar> in-
dorser or drawer to pay a note or bill after its matur-
ity must be made with full knowledge that present-
ment and protest have not been made or notice
given, and that after knowledge of the material facts
affecting hns liability he still manifests in some way,
deducible into a promise, his willingness to be bound.
For it is said that a promise to pay made in ignor-
ance of the promissor's rights is of no effect as a
waiver". This must necessarily be apparent in con-
sidering what was said in the beginning of this vol-
ume, that in order to waive a right a knowledge of
«8. Worley v. Johnson, 60 Fla. 294 ; 68 So. 543 ; 33 L. R. A. (N. 8.)
639.
99. Turnbull v. Maddux, 68 Md. 579; 13 Atl. 334.
Hudson v. Wolcott, 39 Oh. St. 623.
Bank v. Farnsworth, 7 N. Dak. 6 ; 72 N. W. 901.
Blum v. Bidwell, 20 La. Ann. 43.
Glaser v. Rounds, 16 R. I 237; 14 Atl. 863.
Salisbury v. Rennlck, 44 Mo. 454.
Schierl v. Bauinel, 75 Wis. 75 ; 43 N. W. 724.
Hunt v. Wadleigh, 26 Me. 271 ; 45 A. D. 108.
Low v. Howard, 11 Gush. 268 (Mass.).
Lilly v. Petteway, 73 N. Car. 358.
Norrls v. Ward, 59 N. H. 487.
BILLS AND NOTES 97
such right must actually exist in the mind of him
against whom the waiver is alleged, or there must be
such facts and circumstances as will attribute knowl-
edge to him. And since such knowledge must be
brought home to an indorser, it follows that when
it is shown that an indorser or drawer promised to
pay an instrument after its maturity when no de-
mand had been made or notice given, it must also
be shown that the holder's failure in these respects
was known to the indorser or drawer100, or that
knowledge was imputed to him, as held by some
cases hereinafter discussed. And it is said that it
matters not how clear the proof of the promise or in
how strong terms it may be couched, this knowledge
of facts must apfpear1. It is said that knowledge of
the holder's default is an indispensable part of the
promise, for without it, it cannot be inferred that
the indorser intended to admit the right of the hold-
er to resort to him if, in point of fact, the holder had
been guilty of such laches as would discharge the
indorser in point of law2.
Sec. 89. It being the rule that an indorser must
have full knowledge of the holder's laches and of all
the material facts in order that his promise to pay
may be binding upon him as a waiver3, it has been
100. 1 Parsons, Notes & Bills, 601.
Story on Bills, 320.
Cloz et al. v. Miracle, 103 la. 198 ; 72 N. W. 502.
Walker v. Rogers, 39 111. 279.
Baskerville v. Harris, 41 Miss. 535.
1. Farrlngton v. Brown, 7 N. H. 271.
t. Thornton v. Wynn, 12 Wheat. 183 (U. S.) ; « L. Ed. 595.
Wtorklngmen's Bkg. Co. v. Beell, 57 Mo. App. 410.
S. O'Rourke v. Hanchett, 35 N. Y. Supp. 328; 69 N. T. St. R. 717.
Parks v. Smith, 155 Mass. 26 ; 28 N. E. 1044.
Walker v. Rogers, 40 111. 278; 89 A. D. 348.
Martin v. Wlnslow, Fed. Gas. No. 9172.
98 THE LAW OF WAIVER
held that a request of an indorser for a renewal of
the note, accompanied by part payment, are not such
acts as constitute a waiver unless at the time he has
knowledge of the facts by which he has been re-
leased4 ; and the same is true of any other faots
which can 'be construed as a promise to pay made
after default of the holder. The rule, therefore, an-
nounced and universally adhered to is thus stated :
A promise by the indorser of a promissory note to
pay it, with full knowledge of the laches of the hold-
er in regard to presentment, protest or notice, is a
waiver of the laches of the holder and renders the
indorser liable on the note5.
(1) WHETHER PROMISE PRESUMES
KNX)W^ELD<}E :— Sec. 90. When it is conceded
or proved that there was laches of the holder
in respect to demand, protest or notice, the
promise to pay after maturity should be regarded as
prima facie evidence that the party making it knew
of such laches, whenever such knowledge is deemed
necessary to constitute a waiver. It is a promise
against interest. The drawer or indorser should
U S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521.
City Bank v. Clinton Bank, 49 Oh. St. 351; 30 N. E. 958; 27
Oh. L. J. 325 ; 6 Bkg. L. J. 515.
4. Carnegie Steel Co. v. Const. Co. (Tenn. Ch.) ; 38 S. W. 102.
5. Smith v. Lonsdale, 6 Oreg. 78.
Amor v. Stoeckele, 76 Minn. 180; 78 N. W. 1046.
Curtis v. Sprague, 51 Cal. 239.
Shaw v. McNeill, 95 N. Car. 535.
Oxnard v. Varnum, 111 Pa. St. 193 ; 2 Atl. 224 ; 56 A. R. 255.
Stone v. Smith, 30 Tex. 138; 94 A. D. 299.
Tardy v. Boyd, 26 Gratt. (Va.) 637.
Bogart v. McClung, 11 Heisk. (Tenn.) 105; 27 A. R. 737.
Parsons v. Dickinson, 23 Mich. 56.
Rosson v. Carroll, 90 Tenn. 90 ; 16 S. W. 66 ; 43 Alb. L. J. 493.
Schwartz v. Wilmer, 90 Md. 136; 44 Atl. 1059.
Farrington v. Brown, 7 N. H. 271.
BILLS AND NOTES 99
know when the instrument to which he was a party
fell due. His promise to pay presumes it to be over-
due and unpaid. And if he has not received notice,
he has every reason to suppose that it was not given,
and that the steps which should precede it were not
taken6; and it is otherwise said that evidence of a
promise to pay is admissible as tending to show that
due notice had actually been received7; and that a
promise to pay furnishes presumptive evidence that
the proper steps were taken to bind the one making
the (promise8.
Sec. 91. Mr. Daniel in his work on Negotiable
Instruments not only states as a'bove quoted that a
promise by an inolorser to pay an instrument after
its maturity should be regarded as prima facie evi-
dence that the indorser knew at the time of the
promise of the laches of the holder in respect to pre-
sentment, protest and notice, but he further says
that there is certainly strong ground for contending
that upon principles of estopjpel proof of a distinct
promise to pay after maturity (no question of fraud
or deceit arising) should in itself close all contro-
versy as to demand, protest and notice. The drawer
may not only waive the fact that demand, protest or
notice were not duly made or given, he may also
6. 2 Daniel, Negot. Inst. (5th Ed.) 1152, and cases cited.
7. Myers v. Standart, 11 Oh. St. 29.
8. Stix v. Mathews, 63 Mo. 371.
Brennan v. Lowry, 4 Daly 253 (N. T.).
Walker v. Walker, 7 Ark. 552.
Frost v. Harrison, 8 La. Ann 122.
Hazard v. White. 26 Ark. 155.
Cardwell v. Allen, 33 Gratt. (Va.) 160.
Davis v. Miller, 88 la. 114 ; 55 N, W. 89.
Sherman v. Clark, 3 McLean 91 ; Fed. Gas. No. 12,763.
Breed v. Hillhouse, 7 Conn. 523.
100 THE LAW OF WAIVER
waive proof that they were made or given. And
when he promises to pay the bill or note, such
(promise imports an unconditional assumption of it,
and a dispensation with whatever preliminary evi-
dence might be necessary to charge him with its pay-
ment. The holder is thereby advised that the party
raises no question as to his liability, and to permit
him when sued to require other proof of what he has
recognized might enable him to practice a fraud by
lulling the holder to quiet reliance on his promise,
and then springing the defense upon him unawares,
and good faith would seem to suggest that if the
party deliberately promises to pay, he shall not after-
ward go behind that promise and deny facts which it
presupposes and is impliedly based upon9.
Sec. 92. But excellent as the above reasoning
is, and supported as it is by some authorities10, it is
not the doctrine sustained by the weight of author-
ity. The majority of the courts do not, as perhaps
a few do11, go to the extent of holding that a holder
of a commercial paper has the burden of showing
that his laches in regard to presentment, protest and
notice was known to the indorser at the time of a
promise by the latter to pay, made after maturity
of the instrument. The tendency has been, as sug-
gested by Mr. Daniel12, to strike an intermediate at-
9. 2 Daniel, Negot. Inst. (5th Ed.) 1149.
10. See following cases, cited by Daniel, supra:
Debuys v. Mollere, 15 Mart. 318.
Bogart v. M'Clurg, 11 Heisk. 105 (Tenn.).
First N. Bank v. Weston, 25 App. Div. 414; 49 N. T. Supp. 542.
Porter v. Thorn, 30 App. Div. 363 ; 51 N. T. Supp. 974.
11. Good v. Sprigg, 2 Cranch C. C. 172 ; 10 Fed. Cas. No. 5532.
Hunt v. Wadleigh, 26 Me. 271; 45 A. D. 108.
12. 2 Daniel, Negot. Inst. 1150.
BILLS AND NOTES 101
titude and rest the decisions upon the doctrine that
in case of a promise by an indorser or drawer after
maturity of an instrument to pay same, such indors-
er or drawer has the burden of proving the laches of
the holder in regard to presentment, protest and no-
tice, and must rebut the ^presumption arising from
his promise that he had knowledge of the holder's
laches13. But the cases are 'by no means harmonious
as to this doctrine, and a state of flat contradiction
may be said to exist among the courts.
Sec. 93. A few cases may illustrate the doc-
trines discussed in the preceding section. The
burden of showing that the new promise was with
knowledge of all the facts is on the party seeking to
charge the indorser14. If laches appears, there must
be clear proof that the defendant knew of it at the
time he made the promise15. The plaintiff must show
knowledge by the indorser that at the time he made
the promise no notice had been given him, in order
to establish a waiver16. The plaintiff must show that
at the time the promise was made the promisor had
notice that he was discharged17. The burden is on
the plaintiff to show that the promise was made with
full knowledge of the laches18.
13. Loose v. Loose, 36 Pa. St. 538.
Smith v. Janes, 20 Wend. 192 ; 32 A. D. 527.
Veazie v. Rowland, 53 Me. 38.
14. Walker v. Rogers, 40 111. 278 ; 89 A. D. 348.
16. Glaser v. Rounds, 16 R. I. 235 ; 14 Atl. 863.
16. Glassford v. Davis, 46 N. J. L. 348.
17. Harris v. Allnut, 12 La. 465.
18. Vanwlckle v. Downing, 19 La. Ann. 83.
Spurlock v. Bank, 4 Hump. 336.
U. S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521.
La. Bank v. Buhler, 22 La. Ann. 83.
102 THE LAW OF WAIVER
Contrary to the above, it is said that a promise
to pay, made after maturity of a bill or note, throws
upon the promisor the douible burden of showing
laches and that he was ignorant thereof19. Knowl-
edge of the facts may be inferred from circum-
stances20 and in the absence of evidence to the con-
trary a promise to pay will be presumed to have been
made with full knowledge of all the facts21. The
jury may presume knowledge from the circum-
stances22.
(2) KNOWLEDGE OF LEGAL EFFECT
OF HOLDER'S DEFAULT :— Sec. 94. It 'being
a maxim of the law that ignorance of the law excuses
no one, its application to a promise of payment by
an indorser with knowledge of the facts constituting
his discharge leads to the inevitable rule that his
ignorance of the legal effect of such facts in consti-
tuting a waiver of presentment, protest and notice
will not release him from the obligation of the waiv-
er23. A contrary view has been taken24, but the doc-
trine almost universally adhered to at the present
19. Oxnard v. Varnum, 111 Pa. St. 193 ; 2 Atl. 224 ; 56 A. R. 255.
Commercial Bank v. Clark, 28 vt. 325.
Schmidt v. Radcliffe, 4 Strobh. L. 296 ; 53 A. D. 678.
20. Givens v. Mer. Bank, 85 111. 442.
Hughes v. Bowen, 15 la. 446.
21. Davis v. Miller, 88 la. 114 ; 55 N. W. 89.
22. Hopkins v. Liswell, 12 Ma«s. 52.
See: Seldner v. Bank, 66 Md. 488; 8 Atl. 262.
23. Toole v. Crafts, 193 Mass. 110; 78 N. E. 775.
Morgan v. Peet. 41 111. 347.
Matthews v. Allen, 16 Gray 594 ; 77 A. D. 430.
Cheshire v. Taylor, 29 la. 492.
Story on Bills, 320.
24. Ballin v. Betcke, 11 la. 204.
Fleming v. McClure, 1 Brev. 428 ; 2 A. D. <TL
Seay v. Ferguson, 1 Tenn. Ch. 293.
Warder v. Tucker, 7 Mass. 449.
BILLS AND NOTES 103
time is that his ignorance of such legal effect is not
a bar to the waiver25.
C. PAYMENT OB PABT PAYMENT AS
WAIVER :— Sec. 95. The rules obtaining in cases
where a drawer or indorser makes a promise to pay
a bill or note after knowledge of the dereliction o.f
the holder in regard to presentment, protest or no-
tice, are equally applicable to cases where the same
default exists and the drawer or indorser has made
payment or part payment thereof. And, conse-
quently, it is the rule that if, with full knowledge of
the fact that the holder is in default in regard to
these formalities, the drawer or indorser make pay-
ment or part payment, he will be held to have waived
the dereliction of the holder and cannot urge it as a
defense to an action on the paper26, but on the other
hand, it will bind him to full liability27. And, even
as a promise to pay, the actual payment or part pay-
ment is prima facie evidence that he who paid had
been duly charged by the required steps of present-
ment, protest and notice, or at least is sufficient from
which to presume that he had knowledge of the de-
fault of the holder in taking these steps. But if it
be shown that the indorser or drawer, at the time
of making payment, knew the facts, it is settled 'that
he- waived the default28.
25. Sebree Bank v. Moreland, 96 Ky. 150; 28 S. W. 153; 29 L. R.
A. 305.
Glidden v. Chamberline, 167 Mass. 486; 46 N. E. 103; 57 A. S.
R. 479.
26. Evans v. Gale, 17 N. H. 573; 43 A. D. 614.
27. Knapp v. Runals, 37 Wia. 135.
28. Harvey v. Troupe, 23 Miss. 538.
Whitaker v. Morrison, 1 Fla. 29 ; 44 A. D. 627.
Read v. Wilkinson, 2 Wash. C. C. 514.
104 THE LAW OF WAIVEB
®ec. 96. Thus, it has "been held that payment of
the interest in arrears upon the note by an indorser
will revive liability, although at the time of paying
same he protested that he was not liable, and the
payment was made under threats of suits on other
claims against him in case he did not (pay suoh in-
terest29. And payment or part payment of the
amount by one of two indorsers where the other has
received notice, is a waiver of the want of notice to
himself30. And payment of interest on a note after
its maturity ordinarily has the same effect81. A par-
tial payment is prima facie evidence that the neces-
sary legal steps have been taken to fasten liability32 \
but it is said that such a prima facie ease may be
rebutted by the drawer or indorser making such
part payment by showing that the holder was in de-
fault in making demand or giving notice33 ; and this
rebuttal evidence may be overcome by the holder by
showing that at the time of the payment the drawer
or indorser was aware of the default and made the
payment despite the holder's dereliction, in which
event the drawer or indorser will be held to have
waived the default and will be liable to pay the
whole debt34.
29. Greeley v. Whitehead, 35 Fla. 623 ; 17 So. 643 ; 48 A. S. R. 258.
Curtis v. Sprague, 51 Cal. 239.
Sigourney v. Wetherell, 6 Met. 555.
Salisbury v. Renick, 44 Mo. 554.
Smith v. Curlee, 59 111. 221.
30. Sherer v. East on Bank, 33 Pa. St. 134.
81. Greeley v. Whitehead. 35 Fla. 623; 17 So. 643; 48 A. S. R.
258; 28 L. R. A. 286.
32. Chitty, Bills, 564.
83. Porter t>. Thorn, 30 App. Dlv. 363 ; 51 N. T. Supp. 974.
34. Williams v. Robinson. 13 La. 419.
BILLS AND NOTES 105
D. RECEIPT BY INDORSEE OF MONEY,
PROPERTY OR OTHER SECURITY :— Sec. 97.
Where an indorser or drawer receives from the one
primarily liable on a commercial instrument, money
or oth«r property with the understanding that the
debt shall be paid therefrom, such indorser or draw-
er renders himself liable as the principal debtor, and
as to him presentment, protest or notice are unnec-
essary35. And it is held in many cases without quali-
fication that the taking by an indorser of an assign-
ment of all of a maker's property as security
against his liability constitutes a waiver of the in-
dorser's right to require demand, protest and no-
tice36; and further that this constitutes such waiver
whether or not the property is amply sufficient to
protect the indorser37. So the taking of a confes-
sion of judgment covering all the estate of the mak-
er of a note has been held a waiver of demand and
notice38.
Sec. 98. But these doctrines are now not gen-
erally sustained, and it is said that the taking of an
assignment of all the property of the maker is not
necessarily or even presumptively a waiver of the
requisite legal steps to bind the indorser89. The cri-
35. Story, Notes, Sec. 281.
Bond v. Farnham, 5 Mass. 170.
Ray v. Smith, 17 Wall. 418 (U. S.).
Wright v. Andrews, 70 Me. 86.
2 Daniel, Negot. Inst. 1128.
36. Edwards on Bills, 637.
1 Parsons, Notes & Bills, 560.
May v. Boissean, 8 Leigh 213.
Bond v. Farnham, supra.
87. Watkins v. Crouch, 5 Leigh 522.
38. Bank v. Myers, 1 Bailey 412 (S. Car.).
89. Creamer v. Perry, 17 Pick. 182.
1 Parsons, Notes ft Bills. 660.
Haskell v. Boardman, 8 Allen 39.
106 THE LAW OF WAIVER
tenon seems to be whether the indorser of the in-
strument received the money or property from the
maker with the express agreement that it was to be
used to pay the note, or whether it was to be held
only as security against liability. If the former,
then demand, protest and notice are unquestionably
waived40. So, where an indorser took an assign-
ment of a maker 's property to sell it and pay all the
maker's debts, but to first pay the note signed by
the indorser, demand and notice were thereby
waived as the indorser became the principal41.
Sec. 99. The question of whether the security
taken is ample to protect the indorser, has often been
the deciding point as to whether or not the taking of
security is a waiver by the indorser of demand, pro-
test and notice. Many authorities hold that the se-
curity, if ample to protect the indorser, will consti-
tute a waiver42. And, on the other hand, they hold
that if the security is insufficient to fully protect the
indorser, there is no waiver43. But the better rea-
soning, and that which has the most support among
40. Wilson v, Senier, 14 Wis. 3SD.
Spencer v. Harvey, 17 Wend. 489.
Woodman v. Eastman, 10 N. H. 367.
Ray v. Smith, 17 Wall. 416.
Moses v. Ela, 43 N. H. 560.
41. Mech. Bank v. Griswold, 7 Wend. 165.
Clift v. Rogers, 25 Hun 41.
42. 3 Kent. Com. 113.
Develing v. Ferris, 18 Oh. 170.
Beard v. Westerman, 32 Oh. St. 29.
Marshall v. Mitchell, 35 Me. 221.
Durham v. Price, 5 Terg. 300.
Smith v. Lonsdale, 6 Oreg. 157.
Story on Notes, 281.
43. Watkins i>. Crouch, 5 Lefgh 522.
Second Nat. Bank v. McGuire, S31 Oh. St. 295.
Spencer v. Harvey, 17 Wend. 489.
BILLS AND NOTES 107
the authorities, is that stated by Mr. Daniel: "It
seems to us a total misconception of the obligation
of an indorser to place his liability at all upon any
question involving the question of the pecuniary cir-
cumstances of his principal, or security to himself,
unless in taking the security he has stepped into his
principal's shoes"44.
Sec. 100. So, while there is a divergence of
opinion as to whether an acceptance of an assign-
ment by the maker of his property to the indorser
operates as a waiver of demand, protest and notice,
it is generally conceded that unless the assignment
is of all the maker's property, or the security af-
fords ample protection to the indorser, there is no
such waiver43. And, where an assignment was to
indemnify the indorser to the extent of one-fourth
of the note, it was held no waiver46. It has been held
that where the security taken was not amply suffi-
cient to protect the indorser, there might be a waiv-
er of notice but not of demand. But it has been Ob-
served that there are no good reasons to support
such hair-splitting distinctions.
Sec. 101. If the security or assignment be tak-
en by the indorser at the time of indorsement, its ac-
ceptance could not operate as a waiver of any rights
given the indorser by law; for he could only forego
44. 2 Daniel, Negot. Inst. 1134.
Parsons, Notes & Bills, 571.
Taylor v. French, 4 E. D. Smith, 458 (N. T.).
Smith v. Ojerholm, 18 Tex. Civ. App. Ill; 44 S. W. 41.
Holland v. Turner, 10 Conn.
45. Brandt v. Mickler, 28 Md. 436.
Burrows v. Hanegan, 1 McClean, 309.
Holman v. Whiting, 19 Ala. 708.
1 Parsons, Notes & Bills, 567-7D.
46. Watkins v. Crouch, 5 Leigh 522.
THE LAW OF WAIVEB
those rights by assuming the burdens of his princi-
pal by an original promise as a maker or co-maker to
pay the note, and this-is precluded by the fact that
he signs as an indorser only, or he would make an
express waiver over his indorsement. Of course,
proof of an agreement between the parties that the
bill or note should be paid out of the property as-
signed or that the indorser should be re-imbursed
therefrom, would dispense with any demand or no-
tice.
If the security be given or assignment made be-
tween the time of indorsement and the maturity of
the instrument, there is no change in the rights or
liabilities of the indorser in the absence of proof of
special circumstances or of an agreement that the
indorser shall (pay the debt. The standing of the in-
dorser toward the holder is unchanged ; and, indeed,
the holder may never know of the transaction be-
tween the indorser and the principal, and it would
be folly to say that a party could take advantage of a
condition that he knew nothing of. And, besides,
unless it appear that the indorser agreed to dis-
charge the instrument, the assignment made or se-
curity given by the principal is clearly only for the
protection of the indorser and can in no way inure
to the benefit of the holder or in any manner enlarge
his rights or excuse his duties.
Sec. 102. If security or assignment of property
of the principal is taken by an indorser after matur-
ity and non-payment of an instrument, this is not a
waiver of the holder's default as to demand and no-
tice; for it cannot properly be said that simply by
taking security the indorser intended to render him-
self absolutely liable to pay the debt; but on the
BILLS AND NOTES 109
other hand it must be inferred that he was only pro-
tecting himself against the possibility of his future
compulsory payment47. But if the indorser knew
when he took the security or assignment that there
had been no notice or demand, such circumstances
might be considered on the question of waiver by the
indorser of the default of the holder. Parsons says :
"There is ground to contend that if an indorser
takes security after maturity, this is evidence of de-
mand and notice; for why should a person take
these steips to secure himself unless his liability ac-
tually exist?"48 It is thought, however, that such
doctrine should be applied with caution. And it
should be fully proved that when taking such se-
curity the indorser was well aware of his legal rights
and liabilities in the matter49.
Sec. 103. It may readily be seen from the fore-
going that there is considerable conflict among the
courts as to the effect to be given the taking of se-
curity by an indorser from the maker as a waiver
of presentment and notice. In some cases the prop-
erty is taken for the express purpose of enabling the
indorser to pay the note when due, and in other
cases it is taken to secure the indorser as an indemn-
ity. In the former case, the indorser is held to take
the (place of the maker, and the necessity of present-
47. Tower v. Durrell, 9 Mass. 332.
Creamer v. Perry, 17 Pick. 332.
Otsego Bank v. Warren, 18 Barb. 290.
May v. Boisseau, 8 Leigh 164.
First Nat. B. v. Hartman, 110 Pa. St. 196 ; 1 Atl. 271.
First Nat. B. v. Shriner, 110 Pa. St. 188 ; 20 Atl. 718.
48. 1 Parsons, Notes & Bills, 619.
49. See : Saunderson v. Saunderson, 20 Fla. 307.
Walters v. Munroe, 17 Md. 154.
110 THE LAW OF WAIVER
ment and notice is thereby waived ; but in the latter,
no waiver should be implied. The giving of notice
to an indorser is for the purpose of enabling him to
take steps against the maker to protect -himself, and
when he is amply secured the reason and the neces-
sity of giving the notice are obviated. But on the
other hand the indorser agrees to become liable only
in the event of default in payment by the maker, and
his taking security is held to be as an indemnity
against his conditional liability. It has been held
that if the security given the indorser be all that the
maker has, such will constitute a waiver for the rea-
son that the maker having nothing left, the indorser
would have recourse only on the security in his
hands. But on all these points the courts are in
hopeless conflict, and it is impossible to deduce from
them any uniform rules50.
E. WAIVER BY CONDUCT :— ; Sec. 104. In
addition to the waivers of, and agreements to waive
presentment, protest and notice hereinbefore dis-
cussed, it may be said generally, that any conduct
of an indorser calculated to put the holder, when
acting with reasonable prudence, off his guard, and
to induce him not to insist upon his rights and to
omit these formalities, will be sufficient to constitute
a waiver of these steps51. And the same is true
60. Jordan v. Reed, 77 N. J. L. 584; 71 Atl. 280.
Selby v. Brinkley, (Tenn.) ; 17 S. W. 479.
Whittier v. Collins, 15 R. I. 44 ; 23 Atl. 39.
Woodbury v. Crum, 1 Biss. 284; Fed. Gas. No. 17,969.
Cruger v. Llndheim, 4 Tex. App. Civ. Cas. 142; 16 S. W. 420.
Beard v. Westerman, 32 Oh. St. 29.
Mead v. Small, 2 Me 207 ; 11 A. D. 62.
61. Boyd v. Bank, 32 Oh. St. 526; 30 A. R. 624.
Selden v. Bank, 66 Md. 488; 8 Atl. 62; 6 Cent. R. 471.
BILLS AND NOTES 111
where the act of the indorser has misled the holder
to the latter 's injury52, and of any language which
is intended to and does induce the holder not to take
these steps53.
5. CONSIDERATION FOB WAIVER :— Sec.
105. When a waiver of presentment, protest and
notice appears on the face of a commercial paper,
or is on the paper at any place prior to indorsement,
no question as to the necessity of a consideration for
such waiver can be raised; for in such event the in-
dorsement, 'being subsequent to the waiver, the lat-
ter becomes a part of the indorser 's contract as
much as his promise to pay in the event of the de-
fault of the maker, and, being an integral part of
the contract, the waiver is based on the same con-
sideration as the other obligations of the indorse-
ment.
Sec. 106. But in case of a waiver after indorse-
ment, the courts have not been harmonious as to the
necessity of a new consideration for the waiver in
cases where the question has been raised. It is no-
ticeable, however, that the matter of consideration
has seldom been brought before the courts in this
connection. In case after case the courts have held
an indorser, who has been released by the laches of
the holder, to resumption of liability by his volun-
tary act subsequent to his release, without anything
to show that there was a new consideration, and
without any intimation from the courts that they
thought a consideration necessary or that the liabil-
ity of the indorser was effected by its absence.
62. Robinson v. Barnett, 19 Fla. 670 ; 45 A. R. 24.
53. Souther v. McKenna, 20 R. I. 645; 40 Atl. 736.
112 THE LAW OP WAIVER
Sec. 107. But it is necessary to notice the cases
in which the question has been passed upon. Thus,
it has been said that a subsequent promise to pay,
unless supported by a consideration, is not binding
upon an indorser who has been released by the
laches of the holder54. But the decided weight of au-
thority is to the contrary of this, and it is said that
no consideration is necessary to make a waiver bind-
ing55, and that whether upon the ground of waiver
or of a moral obligation that forms a consideration,
the consequence is undeniable that a new promise
will sustain an action upon the note56.
Sec. 108. This question of consideration was
fully discussed in a Pennsylvania case57 and the ref-
erences therein made, and all sides of the matter
looked into. It is said: "The indorser may waive
protest after the date of maturity of the note with
like effect as if done prior to that date58. In Barclay
v. "Weaver, this court said, 'It seems, therefore, that
64. Sebree Bank v. Moreland, 96 Ky. 150; 28 S. W. 163; 29 L. R.
A. 305.
See: Peabody v. Harvey, 4 Conn. 119; 10 A. D. 103.
Merrimack Bank v. Brown, 12 N. H. 320.
White v. Keith, 97 Ala. 668; 12 So. 611.
55. Delsman v. Friedlander, 40 Oreg. 33 ; 66 Pac. 297.
Matthews v. Allen, 16 Gray 594; 77 A. D. 430.
Morgan v. Peet, 32 111. 281.
Lockwood v. Bock, 50 Minn. 142 ; 52 N. W. 391.
Woodman v. Eastman, 10 N. H. 359.
Ross v. Hurd, 71 N. Y. 14 ; 27 A. R. 1.
Tate v. Sullivan, 30 Md. 472 ; 96 A. D. 597.
Porter v. Hodenpuyl, 9 Mich. 11.
66. Brooklyn Bank v. Waring, 2 Sandf. Ch. 1 ; 7 L. Ed. 481.
U. S. Bank v. Southard, 17 JT. J. L. 473 ; 35 A. D. 521.
Harrison v. Bailey, 99 Mass. 620; 97 A. D. 63.
Uhler v. Farmers Bank, 64 Pa. St. 406.
67. Burgettstown Bank v. Nill, 213 Pa. St. 456; 63 Atl. 186.
Cited In Joyce on Def. to Com. Paper, 538.
68. Barclay v. Weaver, 19 Pa. St. 396; 57 A. D. 661.
BILLS AND NOTES 113
the duty of demand and notice, in order to hold an
indorser, is not a part of the contract but a step in
the legal remedy that may be waived at any time in
accordance with the maxim Quilibet potest renuib-
ciare juri pro se introducto.' In some jurisdictions
it is held that the waiver, when made after maturity
of the note, must be made with full knowledge of the
holder's laches and that it requires a new consider-
ation. But it is settled by numerous American au-
thorities that a waiver of protest need not be sup-
ported by a new consideration59. We know of no de-
cision in this court holding that such waiver must be
supported by a new consideration. The contrary rule,
however, is distinctly recognized in Barclay v. Wea-
ver, supra. In that case Mr. Justice Lowrie, in con-
struing the contract of an indorser of negotiable
paper, says : ' The most, therefore, that can be said
of an indorsement of negotiable paper is that from
it there is implied a contract to pay on condition of
the usual demand and notice ; and that this implica-
tion is liable to be changed on the appearance of
circumstances inconsistent with it, whether those cir-
cumstances be shown orally or in writing. But it
may well be questioned whether the condition of de-
mand and notice is truly part of the contract or only
a step in the legal remedy upon it. If it is a part of
the contract, how can it be effectually dispensed with
without a new contract for a sufficient consideration,
If. Neal v. Wood, 23 Ind. 523.
Hu«h«s v. Bowen, 15 la. 446.
Cheshire r. Taylor. 29 la. 492.
SK^KSon v, Hornton, (N. T.) ; 3 A. R ««•.
Tebbetts v. Dowd, 23 Wend. 379.
Wall v. Bry. 1 La. Ann. 312.
Lane v. Steward, 20 Me. 91.
114 THE LAW OF WAIVER
especially after maturity of the note? Yet, there are
decisions without number that a waiver of it during
the currency or after the maturity of the note will
save from the consequences of its omission. This
could not be if it was a condition of the contract for
then the omission of it would discharge the indorser
both morally and legally ; and no new promise after-
wards, even with full knowledge of the facts, could
be of any validity. If, however, an indorsement
without any other circumstances be regarded as an
implied promise to pay provided the holder use such
diligence that the indorser loses nothing by his neg-
ligence or indulgence, then it accords with all these
decisions. Then the law and not the contract de-
clares the usual demand and notice to be in all cases
conclusive and in some cases necessary evidence of
such diligence * * * *. It (the law), there-
fore, is perfectly consistent in declaring that an in-
dorser is bound by a new promise, after he knows
of the omission of demand aiid notice, for this is an
admission that he was not entitled to it, or has not
suffered for want of it. It declares demand and no-
tice necessary in some cases to save the indorser
from loss, and it declares that his own admissions
may be submitted for them.' It is manifest, there-
fore, that from the nature of the indorser 's contract,
a new consideration is not required to sup-port a
waiver of protest before or after maturity of the
paper. ' '
6. WHETHER WAIVER IS WITHIN STAT-
UTE OF FRAUDS:— Sec. 109. In some cases the
question has arisen as to whether an agreement to
waive presentment, protest and notice, and a promise
to pay after knowledge of the laches of the holder in
BILLS AND NOTES 115
regard to these legal steps amounting to a waiver
are not promises to answer for the debt or default
of another, and, therefore, within the statute of
frauds. The better opinion is that the statute of
frauds does not enter into the waiver and that it or
the promise constituting it is valid though not in
writing60. Different reasons are given for this. In
one instance it was said that the indorser does not
make a new promise within the statute of frauds
when he promises to pay after laches on the part of
the holder, because the debt is his own as well as
that of the maker61. And, again, it is said that a
waiver of demand and notice made by an indorser
is not a new contract but only a waiver absolutely or
in part of a condition precedent to his liability62.
7. EXTENT OF WAIVER:— Sec. 110. A
waiver of presentment is a waiver of notice, as the
notice, being subsequent and dependent upon pre-
sentment, must, by such waiver, necessarily be dis-
pensed with63. And a waiver of protest is a waiver
of presentment and notice of dishonor64. So, it is
said that a waiver of presentment is a waiver of all
legal steps otherwise required to charge an in-
dorser65.
60. U. S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521.
Harrison v. Bailey, 99 Mass. 620 ; 97 A. D. 63.
61. Uhler v. Farmers Bank, 64 Pa. St. 406.
62. Worden v. Mitchell, 7 Wis. 161.
63. Furth v. Baxter, 24 Wash. 608 ; 64 Pac. 798.
64. Baker v. Scott, 29 Kans. 136; 44 A. R. 628.
San Diego Bank v. Falkenham, 94 Gal. 141 ; 29 Pac. 866.
Bradley v. Asher, 65 Mo. App. 589.
Timberlake v. Thayer, 76 Miss. 76 ; 23 So. 767.
65. Hammet i>. Trueworthy, 51 Mo. App. 281.
116 THE LAW OF WAIVER
Sec. 111. Where an indorser signs a note under
a waiver written on the back thereof, he makes the
waiver his, and is bound thereby66. And the same is
true of all subsequent indorsers67; although it lias
been said that a waiver of notice written above an
indorser 's signature binds him only68, and that
where an indorser has written a waiver over his sig-
nature, no other party to the instrument is bound by
it unless he expressly adopts it as his own69.
66. Farmers Bank v. Mining Co., 129 Cal. 263 ; 61 Pac. 107T.
Parshley v. Heath. 69 Me. 90; 31 A. R. 246.
67. Id.
68. Joyce, Defenses to Commercial Paper, 573.
69. Halley v. Jackson, 48 Md. 254.
Jackson Bank v. Irons, 18 R. I. 718; 30 Atl. 420.
Woodman v. Thurston, 8 Gush. 157.
MORTGAGES 117
CHAPTER 4.
MORTGAGES.
1. CHATTEL MORTGAGES —
Section
A. Waiver of the Lien by Attachment 112
B. By Execution 116
C. By Other Acts of the Mortgagee 117
2. LftEAL ESTATE MORTGAGES —
A. Waiver of the Lien —
(1) By Suit or Judgment on Note 118
(2) Levy of Execution on Mortgaged
Premises to Satisfy Mortgage Debt. ... 120
(3) Taking Other Security; Attaching
Mortgaged Property, etc 126
(4) Waiver of Priority 129
B. Waiver in Foreclosures —
(l)Breach of Mortgage Conditions 131
(a) Non-payment of interest 132
Ob) Non-ipayment of taxes, insurance
or installments of principal 135
(2) Waiver of Entry to Foreclose 137
(3) Waiver of Foreclosure Sale 141
(4) Waiver of Right to Set Aside Sale —
(a) By laches or delays 143
(b) Effect of redemption 145
(c) Other conduct constituting waiver 146
1. CHATTEL MORTGAGES.
A. WAIVER OF THE LIEN BY ATTACH-
MENT :— Sec. 112. The weight of authority is to the
effect that a mortgagee of personal property who
attaches the mortgaged property in an action for the
debt which is secured therdby waives the lien of his
mortgage70. The reason is that when an attachment
is issued a lien is created which is entirely inconsist-
70. Evans v. Warren. 122 Mass. 303.
Jones, Chat. Mortg. Sec. 665.
Cochrane v. Rich, 142 Mass. 15 ; 6 N. E. 781.
118 THE LAW OF WAIVER
ent with and different from the lien of the mortgage,
and that by electing to pursue one lien the other is
waived. Further, the mortgagor has no attachable
interest in the property so long as the mortgage ex-
ists, as the legal title is in the mortgagee subject to
the equity of redemption still remaining to the mort-
gagor, which is not attachable except under statu-
tory provision therefor71.
Sec. 113. And this rule holds good whether or
not the attaching plaintiff knew that the property
attached was the same as that covered by the mort-
gage and where he persisted to judgment with the
attachment72. So, where a creditor brings suit
against his debtor and sues out a writ of attachment,
but before levying the same learns that the debtor's
property is covered by a chattel mortgage, and upon
receiving such information buys the mortgage debt
and has the mortgage assigned to himself, and there-
after causes such property to be seized under the at-
tachment, he thereby waives his lien under the chat-
tel mortgage; and in case the attachment is dis-
charged the creditor cannot maintain replevin to re-
cover possession of the property so as to foreclose his
mortgage, for the reason that the mortgage lien is
waived by the attachment of the property covered
thereby73.
71. Evans v. Warren, supra.
Cox v. Harris. 64 Ark. 213 ; 41 S. W. 426 ; 62 A. S. R. 187.
Whitney v. Farrar. 51 Me. 418.
Dyckman v. Sevatson, 39 Minn. 132 ; 39 N. W. 73.
Jennings v. McElroy, 42 Ark. 236; 48 A. R. 61.
72. Cox v. Harris, supra.
73. !Dix v. Smith. 9 Okla. 124 ; 60 Pac. 303 ; 50 L. R. A. 714.
MOETGAGES 119
Sec. 114. The effect of the attachment by the
mortgagee is the same whether the attachment is for
the debt secured by the mortgage, or for an entirely
different one ; for the like reasoning applies in that
the two liens are inconsistent and cannot be pursued
at the same time74. For it has been said that 'by levy-
ing the writ of attachment the mortgagee puts the
property into the custody of the law, and it would
be inequitable to permit him to set up his mortgage
to defeat the custody of the law after another credi-
tor has procured a subsequent attachment against
the same property75. So, if the mortgagee give a
receipt to the attaching officer78, or accept the trust
as keeper of the property after it has been attached
'by another creditor77, he cannot avoid liability by
showing that his claim exceeds the value of the prop-
erty, or that the attachment lien was lost by any act
of his.
Sec. 115. Some cases, however, hold opposite
to the foregoing and declare the mortgage lien not
waived by an attachment as in the cases hereinbe-
fore referred to78. But the better reasoning is in
support of the other doctrine.
B. BY EXECUTION:— Sec. 116. Where a
mortgagee obtained a judgment against the mortga-
gor for the mortgage debt and caused execution to
74. Haynes v. Sanborn, 45 N. H. 429.
MX v. Smith, supra.
75. Cobbey, Chat. Mortg. Sec. 746.
76. Drew v. Livermore, 40 Me. 266.
77. Mores! v. Swift, 15 Nev. 215, cited in Cobbey, Chat. Mortg. Seo.
746.
78. Bryam v. Stout, 127 Ind. 196; 26 N. E. 687.
•Webster, etc. Co. v. Losey, 108 la. 687 ; 78 N. W. 78.
120 THE LAW OF WAIVEB
be levied on the property covered, the mortgagor
brought an action of trespass against the mortgagee
and the officer who sold the 'property under execu-
tion, and the court held that the lien of the mortgage
had been waived 'by the execution and that the mort-
gage was no defense to the action of trespass79. This
doctrine, too, is based upon the proposition that title
to the mortgaged property is in the mortgagee and
that by the levy of execution he forbears to exercise
his right created by such title and reinvests title in
the mortgagor so as to defeat the lien of the mort-
gage80. But if a portion of the property has been set
off to the debtor as exempt, it has been held that the
levy of execution does not waive the mortgage lien
on that portion so set aside as exempt81.
But no such waiver occurs by levy of execution
where the levy is abandoned and the goods returned
to the mortgagor ; and the doctrine of waiver of the
mortgage lien by issuance and levy of execution and
sale of the mortgaged property thereunder has been
denied entirely82.
O. BY OTHER ACTS OF THE MORTGA-
GEE : — Sec. 117. If a mortgagee of chattels author-
izes his agent to sell the mortgaged property and de-
posit the proceeds in a bank to be applied on the
mortgage debt, and a sale is made under such au-
thorization, the lien of the mortgage does not attach
79. Kimball v. Marshall, 8 N. H. 291.
80. Thurber v. Jewett, 3 Mich. 295.
Exline v. Lowery, 46 la. 556.
Woolner v. Levy, 48 Mo. App. 469.
81. Barchard v. Kohn, 157 111. App. 579; 41 N. B. 902; 29 L,. R.
A. 803.
82. Conway v. Wilson, 44 N. J. Eq. 457 ; 11 Atl. 734.
MORTGAGES 121
to the proceeds and they are subject to attachment
by other creditors of the mortgagor83 ; or if one hold-
ing a chattel mortgage authorize the mortgagor to
sell the property at private sale, and a sale is made,
such facts operate as an implied waiver of the mort-
gage lien whereby the mortgage is defeated84. And
if the mortgagee authorize a sale of part of the mort-
gaged property, his lien is waived as to the part sold,
but not as to the other85.
But it has been held that the mortgagee does not
waive his lien under the mortgage by remaining si-
lent when informed that part of the property had
been disposed of by the mortgagor86, nor even by
failing to speak when the transfer was executed and
read in his presence87 ; as in such case he must ex-
pressly authorize such transfer or his lien is not
waived. So, the receipt by a mortgagee of part of a
mortgage deibt from a decedent's estate is not a
waiver of the mortgage lien as to the balance, even
though the whole de'bt was proved against the
estate88.
83. Maier v. Freeman, 112 Cal. 8 ; 44 Pac. 357 ; 53 A. S. R. 151.
84. Peterson v. St. Anthony Co., 9 N. Dak. 55; 81 N. W. 59; 81 A,
S. R. 528, citing:
Hogan v. Atl. Elev. Co., 66 Minn. 344; 69 N. W. 1.
Roberts v. Crawford, 54 N. H. 532.
85. Bamet v. Fergus, 51 111. 352; 99 A. D. 547.
Ogden v. Stewart, 29 111. 124.
Patterson v. Taylor, 15 Fla. 336.
86. Patterson v. Taylor, supra.
87. Rlley v. Conner, 79 Mich. 497 ; 44 N. W. 1040.
88. Schuelenburg v. Martin, 11 McCrary, 548 ; 2 Fed, 747.
122 THE LAW OF WAIVER
2. REAL ESTATE MORTGAGES.
A. WAIVER OF THE LIEN—
(1) BY SUIT OE JUDGMENT ON NOTE :—
Sec. 118. In dealing with waivers of the lien of a
mortgage on realty, it is well to remember that the
mortgage does not secure a note or bond, 'but that it
secures an indebtedness of which the note or 'bond is
evidence ; and that the lien of the mortgage is not dis-
charged or lessened by any change or modification of
the form of the indebtedness or in the time of its
payment, but continues till the debt is paid or ex-
pressly discharged or the security abandoned in one
of the modes to be pointed out in the succeeding
pages.
Sec. 119. A mortgagee of realty has several
remedies which he may pursue at his election for col-
lection of the debt secured, and subject to a few ex-
ceptional instances, he may attempt one method, and
if that fail he will not thereby be barred from his
right to proceed according to another. Thus, he may
recover a judgment upon the secured debt at law, and
such will not constitute a waiver of his mortgage
lien, and if he fail to realize on his judgment he may
maintain foreclosure proceedings on the mortgage89.
89. Jones, Mortg. Sec. 924.
Cullum v. Bank, 23 Ala. 797 ; 37 A. D. 725.
Oliphant v. Eckerly, 36 Ark. 69.
Bolles v. Chauncey, 8 Conn. 389.
Citizens Bank v. Dayton 116 111. 267; 4 N. E. 492.
Pouder v. Ritzinger, 102 Ind 571 ; 1 N. E. 44.
Heively v. Matteson, 54 la. 505; 6 N. W. 732.
Parkhurst v. Cammings, 56 Me. 155.
Sledge v. Obenchaln, 58 Miss. 670.
Bank of Utlca v. Finch, 3 Barb. 293 ; 49 A. D. 175.
Nightingale v. Chaffee, 11 R. I. 609.
Stimpson v. Bishop, 82 Va. 190.
Taber v. Hamlin, 97 Mass. 489 ; 93 A. D. 113.
Bunker v. Barren, 79 Me. 62; 8 Atl. 253; 1 A. S. R. 282.
MORTGAGES 123
Such actions are, of course, different, as one is a per-
sonal and the other a real action, but they are not so
inconsistent as to make an election to proceed with
one a waiver of the other90. And if an execution be
issued upon the judgment, the lien of the mortgage
continues till the execution is satisfied. The same
is true where the judgment is for only a part of the
secured debt or for only a part of the secured notes91.
(2) LEVY OF EXECUTION ON MORT-
GAGED PREMISES TO SATISFY MORTGAGE
DEBT : — Sec. 120. It has been seen from the above
that the mortgagee may secure a judgment on the
mortgage debt without reference to the mortgage.
But there is a decided contrariety of opinion among
the courts as to the right of a mortgagee to levy ex-
ecution upon the mortgaged premises and sell same
for the mortgage debt, and the effect to be given such
sale if made.
Sec. 121. On the one hand, it is said that a
mortgagee cannot upon a judgment recovered for the
mortgage debt levy an execution therefor upon the
mortgaged premises92. It is well to be remembered
90. Priest v. Wheelock, 58 111. 114.
Darst v. Bates, 51 111. 439.
Jenkinson v. Ewing, 17 Ind. 505.
Thornton v. Pigs, 24 Mo. 249.
Lalane v. Payne, 42 La. Ann. 152; 7 So. 481.
Torrey v. Cook, 116 Mass. 163.
Shearer v. Mills, 35 la. 499.
Flanagan v. Westcott, 11 N. J. Eq. 284.
Cissna v. Haines, 18 Ind. 496.
91. Applegate v. Mason, 13 Ind. 75.
Brumagin v. Chew, 37 Ala. 354.
Kempner v. Comer, 73 Tex. 196; 11 S. W. 194.
»2. Powell v. Williams, 14 Ala. 476; 48 A. D. 105.
Barker v. Bell, 37 Ala. 354.
Young v. Ruth, 55 Mo. 515.
Carpenter v. Bowen, 42 Miss. 28.
Washburn v. Goodwin, 17 Pick. 137.
124 THE LAW OF WAIVEB
in this connection that there is a distinction between
a levy of execution upon the mortgaged premises,,
and a levy upon the mortgagor's interest or equity
of redemption therein. In some states such sale of
the equity of redemption is prohibited by statute9*.
And in California it is .provided that an action to
foreclose the mortgage is the only method allowed
for the recovery of the mortgage debt. So there the
question does not arise. It may readily 'be seen that
the courts have no high regard for the proposition
of selling the redeeming interest of the mortgagor
for the mortgage debt; and even where such sale is
sanctioned at all the greatest safe-guard possible is
thrown around the mortgagor to prevent the working
of injustice94. But it was said in an early New York
case that "the creditor who takes a mortgage to se-
cure an indebtedness by bond or otherwise has three
remedies, either of which he may pursue or all of
which he may pursue until his debt is satisfied. He
may bring an action of debt upon the bond, or he
may put himself in possession of the rents and pro-
fits of the land mortgaged, or he may foreclose the
equity of redemption and sell the land to satisfy
the debt. In this case the creditor sues on the bond
and obtains judgment and execution, and the execu-
tion strictly reaches only to the remaining interest
of the mortgagor in the land. It reaches only to the
equity of redemption"95. This doctrine was later
93. Deleplalne v. Hitchcock, 6 Hill 14 (N. Y.).
Preston v. Ryan, 45 Mich. 174.
Mitchell v. Rlngle, 151 Ind. 16; 50 N. E. 30; 68 A. S. R. 212.
94. Simpson v. Simpson, 93 N. Car. 373.
Baldwin v. Jenkins, 23 Miss. 206.
Bonnell v. Henry, 13 How. Pr. 142.
Preston v. Ryan, 45 Mich. 174.
95. Jackson v. Hull, 10 Johns. 481 (N. Y.).
MORTGAGES 126
(Criticised in the same state96, and thereafter a stat-
ute enacted prohibiting such sales97. And many
other authorities hold that the equity of redemption
of the mortgagor cannot 'be sold on execution issued
upon a judgment for the mortgagee debt98.
Sec. 122. But there is a rule 'better than either
of those above adverted to, producing justice equally
to the mortgagor and the mortgagee. The rule is
that a mortgagee may sue the mortgagor at law for
the mortgage debt, procure judgment therefor, ob-
tain execution, levy same upon the mortgaged premi-
ses and conduct the proceedings to s-ale as in other
cases under execution. But in such action the mort-
gagee waives the lien of his mortgage and is barred
by his own act from further proceeding under it.
The reasons for this rule have been clearly stated:
"The debt is the principal thing. The mortgage is
designed to secure the ultimate payment of it to the
creditor. But if he pleases to waive that security
and proceed to collect the debt in the ordinary pro-
cess of the law, it is not for the debtor to complain.
He is subjected to no illegal burden. The accepting
a mortgage does not impose upon the creditor the ne-
cessity of giving credit for the term of three years
beyond that stipulated for in the principal contract.
The relation of the parties is changed by the levy.
The levying creditor can no longer be considered en-
96. Tice v. Annin, 2 Johns. Ch. 125.
97. N. Y Code Civ. Proc. 1877, Sec. 1432.
98. Myrover v. French, 73 N. Car. 609.
MoNair v. O'Fallon, 8 Mo. 188.
Davis v. Hamilton, 50 Miss. 218.
Funk v. McReynold. 33 111. 49«.
Crane v. March, 4 Pick. 131.
126 THE LAW OF WAIVER
titled under his mortgage. He is to foe considered
as holding nnder his levy, and his title must depend
upon the regularity of his proceedings. He can
claim no priority over other attaching creditors or
intervening incumbrancers 'by reason of Ms mort-
gage"99.
Sec. 123. This doctrine has been regarded as
providing another method of foreclosing the mort-
gage with the same rights of redemption as in ordi-
nary foreclosures100. But it is not a summary meth-
od of foreclosure. The lien of the mortgage is a
right existing to the mortgagee the same as any
other contractual right, and this he has the right of
insisting upon or waiving as he may choose. Pur-
suing a course of conduct inconsistent with an in-
tention to rely upon the lien is a waiver of it. So that
causing the mortgaged property to be levied upon
and sold under execution on a judgment for the
mortgage debt is a voluntary abandonment of
the mortgage lien or a waiver thereof, and will ipso
facto discharge the mortgage, and the purchaser
takes the premises freed from the mortgage lien1. To
deny the mortgagee the right to so waive his mort-
gage lien would be to deny him the privilege of fore-
going a benefit inuring solely to himself, a restric-
tion unknown to any other class of contracts2.
99. Crooker v. Frazier, 52 Me. 405.
100. Cottingham v. Springer, 88 111. 90.
Sharts v. Await, 73 Ind. 304.
1. Freeby v. Tupper, 15 Oh. 467.
Pierce v. Potter, 7 Watts 475.
Fosdlck v. Risk, 15 Oh. 84 ; 45 A. D. 562.
Lord v. Crowell, 75 Me. 399.
2. Flthlan t>. Corwln, 17 Oh. St. 118.
McLure v. Wheeler, 6 Rich. Eq. 343.
MORTGAGES 127
Stec. 124. Even in those states denying a mort-
gagee the right to levy upon and sell the mortgaged
premises upon an execution issued on a judgment
for the mortgage debt, it said that the mortgagor's
equity of redemption may be levied upon and sold
for another debt in favor of the mortgagee other
than the mortgage debt3. It is hard to understand
why the levy and sale should be allowed without af-
fecting the mortgage lien if the mortgagee is not to
be permitted to waive the mortgage lien and proceed
against the premises the same as any other creditor.
And it is held in those states where statutory
provisions prohibit a sale of the equity of redemp-
tion on execution for the mortgage debt, that such
execution may be levied upon any other property of
the mortgagor4, in effect a holding that the mortga-
gee may abandon his lien for the purpose of proceed-
ing against other property of the mortgagor, but
prohibiting his waiver of the lien in order to proceed
otherwise against the particular property mort-
gaged.
(3) TAKING OTHER SECURITY, AT-
TACHING MORTGAGED PROPERTY, ETC. :-
Sec. 125. It has herein been seen that no indulgence
of the mortgagor by the mortgagee in the way of
changing the time or mode of payment or the form
of the debt is to be construed as a waiver of the
mortgage lien. It remains the same lien as to third
Gushing v. Kurd, 4 Pick. 253 ; 16 A. D. 335.
See: Andrews v. Fiske, 101 Mass. 422.
Roosevelt v. Carpenter, 28 Barb. 426.
Simmons Hdw. Co. v. Brokaw, 7 Neb. 405.
Tucker v. McDonald, 105 Mass. 423.
128 THE LAW OP WAIVER
parties as well as to the mortgagor through any such
changes, so that even the taking of a new mortgage
does not affect it where the rights of the original
mortgagee are expressly reserved5. And the taking
of a second mortgage for the same debt is not a
waiver of the lien of the first6, nor is the accepting
of personal security7. So where the mortgagor con-
veyed the legal title in trust to pay a prior mortgage,
the mortgagee did not waive his lien under the mort-
gage by accepting interest from the trustee8. And,
unless there exist facts amounting to an equitable
estoppel9, the lien will not be waived by the taking
of additional security of whatever character10.
Sec. 126. But the above doctrine must not be
carried too far, for the effect to be given to such
transaction will be governed largely by the intent of
the -parties as gathered from all the circumstances
surrounding their dealings. Thus, it is said that in
the absence of fraud, accident or mistake the release
of a first mortgage and the acceptance of a second
in its stead is a waiver of the lien of the first mort-
6. Ames v. New Orleans Co., Fed. Gas. No. 329.
6. Burdett v. Clay, 47 Ky. 287 (8 B. Mon.).
Heively v. Matteson, 54 la. 505 ; 6 N. W. 732.
Frulck v. Branch, 16 Conn. 260.
Walter v. Walters, 73 Ind. 425.
Brinkerhoff v. Lansing, 4 Johns. Ch. 65 ; 8 A. D. 511.
Geib v. Reynolds, 35 Minn. 331; 28 N. W. 923.
7. Id.
8. Nelson v. Radliff, 72 Miss. 656 ; 18 So. 487.
9. Kans. City Assoc. v. Mastln, 61 Mo. 43S.
10. Blrrell v. Schle, 9 Cal. 104.
Bank v. Tarleton, 23 Miss. 173.
Byers v. Fowler, 14 Ark. 86.
Clssna v. Haines, 18 Ind. 496.
Fireman's Co. v. Wilkinson, 35 N. J. EQ. 180.
Flower v. Elwood, 66 111. 438.
N. H. Bank v. Willard, 10 N. H. 210.
MORTGAGES 129
gage and extinguishes it forever as to intervening
claimants11. And of course an express understand-
ing that the taking of a new mortgage for the same
debt shall have the effect of a complete discharge of
the first mortgage will be carried out according to
the intention of the parties and the prior lien will <be
held discharged or abandoned12. It is true that the
effect of the transaction here being considered is not
BO much to produce a waiver of the mortgage lien as
it is to constitute a full and complete payment of the
mortgage debt, and consequently, a discharge and
satisfaction of the mortgage securing it ; and yet all
of the elements of a waiver are present: It is the
voluntary relinquishment of a known right with an
intention that it shall not be further acted upon.
There is nothing to compel a mortgagee to forego
the benefit of his prior lien. And where he does so
in order to accept a second or renewal mortgage for
the same debt, he should be held strictly to his rights
under such second mortgage and not be permitted to
tie the second mortgage's string to the first mort-
gage's kite. To carry such a doctrine to its possible
limit would be to produce a condition undesirable to
say the least ; for if one renewal or second mortgage
may be taken by the mortgagee without his waiving
or abandoning the lien of his first mortgage, even
though the latter be discharged from record, there
is no reason why a third may not be given, nor a
fourth nor any other number, all relating back to and
11. Dlngwian v. Randall, 13 Cal. 513.
Miller v. Hlcken, 92 Cal. 229; 28 Pac. 339.
Richards v. Griffith, 92 Cal. 493 ; 28 Pac. 484.
Anglade v. St. Avit, 67 Mo. 434.
New Eng. Co. v. Hirsch, 96 Ala. 232 ; 11 So. 63.
12. Boston Iron Co. v. King, 2 Gush. 400.
130 THE LAW or WAIVER
continuing the lien of the first mortgage; and in the
absence of fraud or mistake this could not be per-
mitted13.
Siec. 127. In the absence of statutory regula-
tion, the mortgagee has several remedies1 any one or
all of which he may pursue, the only condition being
that he shall have but one satisfaction for the debt.
And so the lien of the mortgage is not lost or waived
by first bringing suit on the note without reference
to the mortgage. But it is otherwise if in an action
on the particular indebtedness the mortgagee attach
the mortgaged premises. For in such event another
lien is established different from and inconsistent
with the mortgage lien which it has supplanted. We
are aware that a different doctrine has been present-
ed14, where it is said that the issuing of an attach-
ment by the mortgagee against the mortgagor on the
mortgage debt and the obtaining of a judgment
thereunder is not per se a waiver of the mortgage
lien. The contrary has been held, although under
statutory provision limiting the mortgagee to one
action for collection of his mortgage debt15. It oc-
curs to us that the latter is the better doctrine
whether provided for by statute or not ; for the mort-
is. Gardenvllle v. Walker. 52 Md. 455.
Woolen's Ex'rs. v. Hlllen's Ex'rs., 9 Gill 185 ; 52 A. D. 690.
Wash. Co. v. Slaughter, 54 Ja. 265; 6 N. W. 291.
Barnes v. Mott, 64 N. Y. 397 ; 21 A. R. 625.
Joyner v. Stancill, 108 N. Car. 153 ; 12 S. E. 912.
Stearns v. Godfrey, 16 Me. 158.
Trust Co. v. Farrar, 53 Vt. 542.
14. Lanahan v. Lawton, 50 N. J. Eq. 276; 23 Atl. 476.
Lydecker v. Bogert, 38 N. J. Eq. 136.
U. S. Trust Co. v. Lanahan, 50 N. J. Eq. 796; 27 Atl. 1032.
15. Bacon v. Raybould, 4 Utah 357; 10 Pac. 481; (Aff. 11 Pao.
570).
Ladd v. Ruggles, 23 Cal. 282.
MORTGAGES 131
gagee should be put to his election whether he will
rely upon the lien of his mortgage or the lien of an
attachment, and when one method is chosen the other
should :be held waived.
Sec. 128. Where a mortgagee permits the mort-
gaged property to 'be levied upon in another action
without asserting his claim thereto, it has been held
that he waives his lien as to the purchaser16. This
doctrine, however, we are not at liberty to accede to.
It is the rule, however, that a mortgagee may lose or
waive his lien by such an unreasonable delay in
availing himself of the security as to produce the be-
lief that he has abandoned it or as to make it in-
equitable to permit him to enforce it17. But any de-
lay short of a time when payment is to be presumed
will not be sufficient to bar the right to assert the
lien18, nor, it has been said, will any delay short of
the period provided by the statute of limitation be
sufficient as a bar or waiver19.
(4) WAIVER OF PRIORITY:— Sec. 129. As
hereinbefore shown, the release of a first mortgage
and acceptance of a second in its stead will, in the
absence of fraud or mistake, operate as a waiver of
the lien of the original mortgage, and the lien of the
18. Grace v. Mercer, 49 Ky. 157.
17. Bettis v. Allen, 73 Ky. 40.
Hawkins v. Chapman, 36 Md. 83.
Thompson v. Jarvis, 39 Mich. 242 ; 10 N. W. 469.
Brown v. Becknall, 58 N. Car.' 423.
18. Gibson v. Green's Adm'r., 89 Va. 524 ; 16 S. E. 661; 37 A. S. R.
888.
Blair v. St. Louis Co.. 22 Fed. 471.
19. Murto v. Lemon, 19 Colo. App. 314; 76 Pac. 160.
Dick v. Balch, 54 Barb. 455.
Mason v. Phil brook, 69 Me. 57.
132 THE LAW or WAIVEB
second will run only from its execution and record-
ing in like manner as if no prior mortgage had ex-
isted20. The effect of this is to give priority to an-
other mortgage executed subsequently to the old
mortgage 'but prior to the new, or, in other words, to
give priority to an intervening incumbrance21.
Of course, a prior mortgagee may, if he choose,
waive the priority of his lien in favor of a junior in-
cumbrancer22, and he may do so without destroying
his mortgage23. And a waiver of priority may be
produced by a course of conduct on the part of the
mortgagee inducing the belief that such priority
would not be insisted upon by him, or prejudicing
the rights of a junior incumbrancer in such a man-
ner that it would be unconscionable to give effect to
the priority. Or fraud, concealment, or misrepre-
sentation on the part of the senior mortgagee may
have the same effect. Thus, if he permits a second
mortgagee to procure a lien on the same property,
20. Frazee v. Inslce, 2 N. J. Eq. 239.
Dingman v. Randall, 13 Cal. 513.
Richards v. Griffith, 92 Cal. 493 ; 28 Pac. 484.
Holt v. Baker, 58 N. H. 276.
Anglade v. St. Avit, 67 Mo. 434.
Daws v. Craig, 62 la. 515; 17 N. W. 778.
21. New Eng. Co. v. Hirsch, 96 Ala. 232; 11 So. 63.
Stears v. Godfrey, 16 Me. 158.
Wash. Co. v. Slaughter, 54 la. 265 ; 6 N. W. 291.
Trust Co. v. Farrar, 53 Vt. 542.
22. Frost v. Tonkers Bank, 70 N. T. 553 ; 26 A. R. 627.
Bank v. Moore, 94 N. Car. 734.
Mut. Co. v. Sturgls, 33 N. J. Eq. 328.
Clason v. Shephers. 6 Wis. 369.
Darst v. Pates, 95 111. 493.
Loland v. Ry. Co., 52 Vt. 144.
23. Loucks v. Union Bank, 2 La. Ann. 617.
Rigler v. Light, 90 Pa. St. 235.
Lehman v. Godberry, 40 La. Ann. ; 4 So. 816.
N. T. Chem. Co. v. Peck, 6 N. J. Eq. 37.
MOBTGAGES 133
concealing his interests, he thereby waives the pri-
ority of his mortgage24. And it is the duty of one
holding a mortgage in the form of a, deed to disclose
the true nature of his security, if same be inquired
about, and any false statement concerning same, or
concealment of material facts will have the effect of
waiving the priority of such mortgage lien25. So, if
the mortgagee, when interrogated, states that his
mortgage has been paid, the same result is pro-
duced26. And if the mortgagee represents to a third
person that the de'bt secured by his mortgage has
been paid, and such person thereupon releases an
attachment upon the goods of the mortgagor and ac-
cepts a mortgage on the same land in lieu of such
attachment, the first mortgagee, on account of his
misrepresentation as to his mortgage, will be sub-
ordinated to the lien of the second mortgage27.
It is also said that where a mortgagee holding a
first lien on premises releases the mortgagor from
personal liability on the mortgage debt, he thereby
subordinates his lien to that of a junior incum-
brancer28. The reason given being that such release
is an impairment of the security of the later incum-
brance. But we cannot agree with the reasoning nor
the results. The right to hold the mortgagor per-
24. Chester v. Greer, 24 Tenn. 26.
Green v. Price, 1 Munf. (Va.) 449.
Chapman v. Hamilton, 19 Ala. 121.
Tucker v. Jackson, 60 N. H. 214.
25. Geary v. Porter, 17 Oreg. 465 ; 21 Pac. 442.
26. Lasselle v. Barnett, 1 Blackf. 150 ; 12 A. D. 217.
Newman v. Mueller, 16 Neb. 523 ; 20 N. W 843 *
27. Platt v. Squire, 53 Mass. 494.
Freeman v. Brown, 96 Ala. 301 ; 11 So. 249
28. Sexton v^Puckett, 24 Wis. 346.
Armitage v. Wickliffe, 12 B. Mon. 488 (Ky.).
134 THE LAW OF WAIVER
sonally for the defbt is one which may be waived with
no other effect than to limit the mortgagee to the
mortgaged property for the collection of his debt29.
Sec. 130. But a prior incumbrancer who was
present at the execution and delivery of a subsequent
mortgage and failed to disclose his interest docs not
waive the priority of his mortgagte if the subsequent
mortgagee had actual or constructive notice of its ex-
istence30 ; nor will the fact that he witnessed such
subsequent mortgage produce such waiver where
there was no fraud or deceptive silence31. Nor will
an agreement for an extension of time for payment
of the debt affect his priority32. And, generally
speaking, to constitute a waiver of his priority, the
first mortgagee must be guilty of fraud or bad faith
or gross disregard for the interests of third parties,
and his mere carelessness or silence will not produce
such result33.
B. WAIVER IN FOREiCDOSUiRJES.
(1) BREACH OF MORTGAGE CONDI-
TIONS:— Sec. 131. Nearly all mortgagtes contain
conditions a breach of which subjects the entire debt
to maturity and the mortgage to foreclosure at the
option of the mortgagee. It is permissible for parties
to contract as they please in this regard and such
agreement will be given effect. The usual provisions
29. Baldwin v. Norton, 2 Conn. 161.
30. Carter v. Champion, 8 Conn. 549 ; 21 A. D. 695.
31. Claybaugh v. Byerly, 7 Gill (Md.) 354; 48 A. D. 575.
Brlnkerhoff v. Lansing, 4 Johns. Ch. (N. Y.) 65; 8 A. D. 538.
32. Whittacre v. Fulker, 5 Minn. 508.
Farmers Bank v. Mut. Soc., 4 Leigh 69 (Va.).
33. Berry v. Mut. Ins. Co., 2 Johns. Ch. 603.
Martin v. Cent. Co., 78 la. 504; 43 N. W. 301.
MORTGAGES 135
are that the mortgagor shall promptly pay the in-
terest, taxes, insurance or installments of the princi-
pal as they become due, and in default of any such
payment the mortgage may be foreclosed for the
whole debt secured. But it is not compulsory that
the mortgagee avail himself of his right to foreclose.
It is a provision solely for his benefit, and if he
choose he may agree to waive any such (breach of the
conditions of the mortgage, or he may so conduct
himself as to mislead the mortgagor into an honest
belief that this right is not to be insisted upon, in
which event a waiver of the default will be imputed
to the mortgagee.
(a) NON-PAYMENT OF INTEREST :— Sec.
132. Any act will be sufficient to constitute a waiver
of default in non-payment of interest which is incon-
sistent with a claim of forfeiture34. Thus, an agree-
ment for an extension of time in which to pay the
interest, even by parol, is sufficient to waive any
right to a forfeiture which might have been incurred
thereby35. But an acceptance of part of the interest
already due does not have such effect as a waiver36.
A waiver of forfeiture was declared where the con-
dition of a subsequent mortgage was that interest on
the prior mortgage was to be punctually paid, and
34. Sire v. Wightman, 25 N. J. Eq. 102.
$5. Manning v. Tuthtll, 30 N. J. Eq. -29.
Lawson v. Barren, 18 Hun 414.
Ala. Co. v. Robinson, 56 Fed. 690.
Moore v. Sargent, 112 Ind. 484; 14 N. E. 466.
Smalley v. Ranken. 85 la. 612; 52 N. W. 507.
See: Mason v. Luce, 116 Col. 232; 48 Pac. 72.
Jacobs v. Swift, 8 Kans. App. 857 ; 5* Bac. 1127.
Fulkner v. Brockenbrough, 4 Rand. 246 (Va.).
36. Smith v. Hooton, 3 Pa. Dist. 250.
136 THE LAW OF WAIVER
the mortgagee accepted payment of over-due interest
before foreclosure proceedings were started37.
<Sec. 133. The acceptance of over-due interest,
however, does not waive the right to declare a for-
feiture for non-payment of an installment of the
principal38. And where payment of several install-
ments of the interest was accepted by the mortgagee
after their maturity, it was held that such did not
constitute a waiver of the right to declare the whole
debt due upon failure to promptly pay the interest
subsequently falling due39; but such a holding is
questionable to say the least, for by his conduct the
mortgagee has induced in the mind of the mortgagor
a belief that the strict letter of the (provision is not
to be insisted upon, and when the latter has been
lulled into a feeling of security in this behalf, the
former should not be permitted to reap such a bene-
fit as the result of his own misleading conduct.
Sec. 134. An acceptance of payment of a part
of the principal is not a waiver of the default in non-
payment of interest40 ; nor would an acceptance of a
second installment of interest waive a default as to
the first after foreclosure proceedings had been
started41 ; although it is apprehended that if a mort-
gagee should waive several such defaults the mort-
gagor might safely presume that the forfeiture pro-
vided for would not be taken advantage of in a sum-
mary manner but that he would have a reasonable
37. Sire v. Wigbtman, 25 N. J. EQ. 102.
38. Northwestern Co. v. Butler, 57 Neb. 198; 77 N. W. 667.
39. Perm. Hos. Co. v. Gibson, 2 Miles (Pa.) 324.
40. Moore v. Sargent, 112 Ind. 484; 14 N. E. 466.
41. Curran v. Houston, 201 HI. 442 ; 66 N. E. 238.
MORTGAGES 137
time after maturity to pay, as he had on former oc-
casions, even where a waiver does not occur as to
subsequent installments of interest if one default has
already been waived42. Simply notifying a mort-
gagor that an installment of interest is about due is
not a waiver of default in payment thereof43. A
mortgagor requested a few days additional after
maturity of interest in which to pay same ; the mort-
gagee waited three months before exercising his op-
tion to foreclose; such delay was held no waiver of
the default in prompt payment of the interest at its
maturity44.
(b) NON-PAYMENT OF TAXES, INSUR-
ANCE, OR INSTALLMENTS OF PRINCIPAL:—
Sec. 135. Where the mortgage gives the mortgagee
the right to declare the debt due and to foreclose the
mortgage upon non-payment of taxes on the mort-
gaged premises, or insurance thereon, the mortgagee
waives the right to declare a forfeiture therefor un-
less he avails himself of the default before it is
cured. For if the mortgagor pay the taxes or in-
surance before foreclosure proceedings are started,
the right to foreclose on account of prompt payment
is lost to the mortgagee45. In such event it is not
the payment that produces the waiver, as such could
be induced only by some act of the mortgagee, but
it is the laches of the mortgagee in taking advantage
of this provision of the mortgage. But the mere fact
that the mortgagee pays the taxes or insurance him-
42. Baldwin Inv. Co. v. Bailey, 45 Neb. 580 ; 63 N. W. 847.
PoSt v. Industrial Co., 34 Atl. 137 (N. J.).
43. Parker v. Olllver, 106 Ala. 549 ; 18 So. 40.
44. Hewett v. Dean, 25 Pac. 753.
45. Smalley v. Ranken, 85 la. 612 ; 52 N. W. 507.
Parker v. Olliver, 106 Ala. 549; 18 So. 40.
138 THE LAW OF WAIVER
self will be no bar to his right to foreclose48 ; and it
is held though he fails to take advantage of this pro-
vision on the first default this will not constitute a
waiver for any subsequent defaults of a similar
character47.
'Sec. 136. So where the instrument gives the
mortgagee the right to foreclose upon failure of the
mortgagor to pay an installment of the principal at a
designated time, he waives the right to a foreclosure
by an unconditional acceptance of payment thereof
after the time limited. But it was held, contrary to
the above, that acceptance of payment of one of two
notes three days after its maturity was no waiver by
the mortgagee of a provision giving him the option
to declare both due upon non-payment of either at
maturity48.
(2) WAIVER OF EN'TEY TO FOEE-
CLOSE: — Sec. 137. An entry to foreclose a mort-
gage may be made by the. mortgagee, and such waiv-
er may be by the express agreement of the parties,
or it may be induced by any conduct or facts from
which an agreement may be inferred or which would
mak,e it inequitable to give effect to ttie entry, or
which evidence an intention on the part of the mort-
gagee not to insist on the entry ,and complete the
foreclosure in that way. Thus, rreceipt of payment
of the mortgage debt is such a waiver49, and it has
46. Brickell v. Batchelder, 62 Cal. 623.
See: Rasmussen v. Levin, 28 Colo. 448; 65 P,ac. 94.
47. Parker v. Olliver, supra.
48. Moore v. Sargent, 112 Ind. ,4S4; 14 N. E. 466.
See: Brown v. Thompson, 29 Mich. 72.
Faulkner's Adm'x. v. Brockenbrough, 4 Rand. 245 (Va.).
49. Bachelder v. Robinson, 6 N. H. 12.
MORTGAGES 139
been held that accepting payment of a part of the
debt would have the same effect50, although it seems
to us that better reasoning supports an opposite
holding51, or at least that the intention of the parties
should be ascertained and that such intention should
govern. Of course if the understanding is that re-
ceipt of payment shall open foreclosure, that is con-
clusive of the matter52, as are also facts and circum-
stances from which such understanding may be in-
ferred53 ; but if such intention remains doubtful, the
foreclosure will not be waived54.
Sec. 138. Where a mortgagee enters into pos-
session of the premises under a foreclosure judg-
ment, he does not waive the entry of foreclosure by
releasing the judgment and retaining possession, for
the continued actual possession is a complete fore-
closure in itself55. But if the mortgagee bring ac-
tion on the secured debt upon the theory that the
land is not worth the debt, and recovers judgment
for part of such debt, the foreclosure is thereby
waived by virtue of statutory provision in some
states58.
Sec. 139. If the mortgagee give bond to the mort-
gagor conditioned to discharge the mortgage upon
payment of same at a future day, this has the effect
of waiving the prior entry or opening the foreclos-
50. Dow v. Moor, 59 Me. 118.
Deming v. Comings, 11 N. H. 483.
Ross v. Leavitt, 70 N. H. 602; 50 All. 110.
51. Tompson v. Tappan, 139 Mass. 506; 1 N. E. 924.
82. Dow v. Moor, 59 Me. 376.
54. Lawrence v. Fletcher, 8 Met. (Mass.) 153.
55. Couch v. Stevens, 37 N. H. 169.
66. Jones on Mortgages, Art. 1274.
140 THE LAW OF WAIVEB
tire, as such bond is consistent only with the con-
tinued existence of the mortgage57. And the same
result is produced by an agreement to abandon the
foreclosure if the debt be paid by a designated time58,
although the waiver will not be effective unless pay-
ment is actually made within the time limited59. So,
an extension of time for payment beyond the time
allowed by law to redeem wiR amount to a waiver60,
as will an agreement to re-convey the premises61,
whenever the debt should be paid from the rents and
profits. And if the mortgagee commence action of
foreclosure of his mortgage, a prior entry is thereby
waived, for such action is an admission that the
entry is a nullity and is inconsistent with an inten-
tion to rely upon it62. But an action of trespass for
waste against the mortgagor is not a waiver of the
entry, for such action is an affirmance of the entry63,
as is also an action for possession against a tenant
at will of the mortgagor64. So, if the mortgagee,
after entry, accept a new security for the whole
debt, the entry is thereby waived, as the continued
existence of the mortgage is still recognized65.
Sec. 140. The waiver, to be effective, must be
produced by the agreement or conduct of the holder
57. Joslin v. Wyman, 9 Gray 63.
68. McNeil v. Call, 19 N. H. 403 ; 51 A. D. 188.
69. Clark v, Crosby, 101 Mass. 184.
Danforth v. Roberts, 20 Me. 307.
60. Chase v. McClellan, 49 Me. 495.
•1. Quint v. Little, 4 Me. 495.
62. Smith v. Kelley, 27 Me. 237; 46 A. D. 595.
Fay v. Valentine, 5 Pick. 418.
But see: Blavln v. Gove, 102 Mass. 298.
Dorrell v. Johnson, 17 Pick. 263.
68. Page v. Robinson, 10 Cush. 99.
•4. Fletcher v. Gary, 103 Mass. 475.
65. Trow v. Berry, 113 Mass. 13$.
MORTGAGES 141
of the mortgage66. And when the mortgage is as-
signed, the assignee has full controL and charge over
it and all rights pertaining thereto, to all intents and
purposes the same as the mortgagee had, and he has
the right to waive an entry made either by himself
or the original mortgagee67 ; and the same acts will
amount to a waiver as if done by the original mort-
gagee.
(3) WAIVES OF FORECLOSURE SALE :—
Sec. 141. Where a sale of mortgaged premises is
had by foreclosure, the parties may agree to disre-
gard or set aside the sale and restore the title to its
former condition, and such agreement will be given
effect in the absence of rights of third parties which
would be contravened thereby68. And any other
facts or conduct of the mortgagee may be construed
as a waiver which manifests an intention not to
stand upon the sale. Thus, agreeing to extend the
time for payment of the mortgage debt beyond the
period allowed by law for redemption wijl operate
as a waiver of a previous sale69. But if it is the
agreement that the whole deObt is to be paid within
the time allowed for redemption, and part payment
is received within such time, such facts do not con-
stitute a waiver of the sale70, although it is said tha.t
accepting (part payment of the mortgage debt after
66. Fisher v. Shaw, 42 Me. 32.
67. Cutts v. York Mfg. Co., 14 Me. 326.
Hill v. Moore, 40 Me. 515.
Hurd v. Coleman, 42 Me. 182.
Jones, Mortgages, Art. 1266.
«8. Dodge v. Brewer, 31 Mich. 227.
«9. Lockwood v. Mitchell, 7 Oh. St. 387 ; 70 A. D. 78.
f 0. Cameron v. Adams, 31 Mich. 426.
142 THE LAW OF WAIVER
a foreclosure sale is a waiver of the foreclosure71.
The mortgagee, however, cannot always simply by
his own volition, waive the sale and render it a nul-
lity. For if such a waiver would operate as a fraud
upon the mortgagor he may insist upon the sale's
remaining intact. Thus, it is said that if the mort-
gagee of land purchase the premises on foreclosure
for a sum equal to the mortgage debt, he thereby
satisfies the debt, and he cannot later abandon the
sale and sue on the debt72.
Sec. 142. A mortgagee who has become the pur-
chaser of the premises at a foreclosure sale, and by
his purchasing renders the sale voidable, does not
waive the sale by later entering into possession as
provided by statute for foreclosure73. Nor is a fore-
closure sale for one installment of the debt waived
by a suit for a second installment74; nor is such a
result produced by the remark of a purchaser at a
foreclosure sale that he wished only the payment of
the debt, and if that should be paid he would re- con-
vey to the mortgagor75. But if in any such under-
standing fraud should be exercised upon the mort-
gagor by the mortgagee, the effect of the sale will be
held waived and the mortgagor permitted to redeem
from it76.
(4) WAIVER OF RIGHT TO SET ASIDE
SALE, (a) BY LACHES OR DELAY :— Sec. 143.
fl. Scott v. Childs, 64 N. H. 566; 15 Atl. 216.
72. Hood v. Adams, 124 Mass. 481; 26 A. R. 687.
13. Learned v. Foster, 117 Mass. 365.
74. Wilson v. Wilson, 4 la. 309.
75. Mansur v. Willard, 57 Mo. 347.
Medsker v. Swaney, 45 Mo. 273.
76. Stinson v. Pepper, 47 Fed. 676.
MORTGAGES 143
A voidable sale of mortgaged premises under fore-
closure may b6 set aside at the instance of the mort-
gagor, provided he act with sufficient promptness
after knowledge of the voidability of the sale, or if
he has not been guilty of laches, or has not otherwise
so conducted himself as to bar his rights. But the
presumptions are always in favor of the regularity
of the sale, and it will not be vacated except upon a
strict showing that the irregularities have been taken
advantage of in a reasonable time and before rights
of innocent parties have attached77. Courts will not
interfere after a reasonable time has expired before
the mortgagor takes action; and, of course, if he
wait until the statutory time for redemption has ex-
pired, his right to set aside the sale, if it ever exist-
ed, will be deemed waived78. And a delay of four
years was held a waiver of the right where the mort-
gagor saw the property sold and made no attempt to
redeem it or to take any other action until the prop-
erty had greatly increased in value79. And a delay
of seven or eight years has been held to amount to a
waiver80.
Sec. 144. But in order that laches of the mort-
gagor may be sufficient to amount to a waiver of his
right to vacate an irregular or voidable sale, he must
have either actual or imputed knowledge of the facts
constituting the irregularity upon which he could
reasonably have been expected to have based a choice
77. Harwood v. Ry. Co., 17 Wall. 78 (U. S.).
Terbell v. Lee, 40 Fed. 40.
78. Depew v. Depew, 46 How. Pr. 441.
79. Bryam v. Pinney, 3 Ariz. 27 ; 20 Pac. 311.
80. Roberts v. Fleming, 53 111. 196.
And see: Ex-Miss. Land Co. v. Flash, 97 Cal. 610; 32 Pac. 600.
Meier v. Meier, 105 Mo. 411 ; 16 S. W. 223.
144 THE LAW OF WAIVER
to avoid the sale or abide by it81. Thus, it was held
that the right to set aside a sale was not waived
where the mortgagor paid no taxes on the property
for five years, and took no steps to ascertain whether
the mortgage had been foreclosed, if he had no notice
of the foreclosure and the mortgage provided that the
taxes might be paid by the mortgagee and recovered
as a part of the mortgage debt82.
(b) EFFECT OF REDEMPTION :^Sec. 145.
A mortgagor cannot insist that a foreclosure sale ia
subject to being set aside and at the same time so
conduct himself as to recognize its validity. He must
be consistent in his demands and in his conduct. And
so, one who claims the right to redeem from the sale
or attempts to exercise such right, thereby affirms
the validity of the sale and will be held to have
waived the defective elements thereof and also his
right to vacate the sale83. And where the mortgagor
made an agreement with the purchaser under which
the former was to remain in possession of the prem-
ises and have the right to redeem, he was held to
have waived any right he may have had to vacate
the sale after he had broken his agreement to redeem,
as such agreement was inconsistent with an intention
to regard the sale as voidable and was in affirmance
of it84.
81. Bausman v. Kelley, 38 Minn. 197; 56 N. W. 333; 8 A. S. R. 661.
2 Pomeroy's Eq. Jur. Sees. 809, 817 and 965.
Union Dime Inst. v. Clark, 59 How. Pr. 342.
82. McEachern v. Brackett, 8 Wash. 652; 36 Pac. 690; 40 A, S.
R. 923.
83. Miller v. Ayres, 59 la. 424 ; 13 N. W. 436.
Dailey v. Abbott, 40 Ark. 275.
84. Toll v. Killer, 11 Paige (N. T.) 228.
Maxwell v. Newton, 65 Wis. 261 ; 27 N. W. 31.
Randall v. Howard, 2 Black. 585.
MOETGAGES
(c) OTHER CONDUCT CONSTITUTING
WAIVER: — Sec. 146. If a mortgagor accept the
surplus from a foreclosure sale of his premises over
and above the mortgage debt, he affirms the validity
of the sale as much as if he had claimed the right to
redeem, and will not thereafter be heard to say that
the sale was irregular or voidable. But at the time
of accepting such surplus he must have knowledge of
the facts rendering the sale voidable or such waiver
will not be held against him. It is the inconsistency,
with knowledge of the facts, that constitutes the
waiver, as it cannot occur when a party is ignorant of
his rights, if he has not been negligent in ascertain-
ing them85.
But it has been said that the receipt of such sur-
plus money arising from the foreclosure sale is not
of itself a waiver of irregularities in the sale, but
merely evidence from which such waiver might be
inferred86. But such we think is not the better rule.
The matter is to be determined according to the in-
tention of the party having the right to avoid the
sale; and this intention, in the absence of an agree-
ment between the parties, can best be ascertained
from the conduct of the mortgagor himself. And if
he consider the sale voidable on account of irregular-
ities, he must promptly take advantage thereof and
be consistent in his intention to vacate the sale. The
receipt of parts of the fruits of a sale, with knowl-
edge of the facts, can be construed only as an inten-
tion to abide by the sale.
* • » . A
85. France v. Haynea, 67 la. 139; 25 N. W. 98.
Colton v. Rupert, 60 Mich. 318 ; 27 N. W. 520.
Meriwether v. Craig, 118 Ind. 301 ; 20 N. E. 769.
86. Candee v. Burke, 1 Hun 546 (N. Y.).
146 THE LAW OP WAIVER
Sec. 147. If a party have an opportunity to avail
himself of the right to object to a foreclosure sale,
he must take advantage of such opportunity or it will
later be denied him. He must not mislead others
into a belief that he is satisfied with the manner in
which the sale has been made, and then attempt to in-
terpose objections after such other parties have been
induced by his conduct to act to their prejudice.
Thus, where a mortgagor has notice that, in pursu-
ance of a statute, the sheriff will acknowledge in
open court a deed to the purchaser of mortgaged
premises, he waives defects in the sale by failing to
appear and object thereto at the time set87.
And the voidability of the sale is also waived
where with knowledge of defects the mortgagor
makes a payment on the amount remaining unpaid
after sale of the property88 ; or if he resists an execu-
tion for the deficiency judgment89. So, a purchaser
cannot object to the regularity of a sale after partici-
pating in it and accepting the fruits thereof90; nor
can a party who has been negligent in making in-
quiry91, or claimed a part of the proceeds of the
sale92, or agreed that the property might be sold for
a certain price93.
ST. Gibson v. Lyon, 115 U. S. 439 : 6 Sup. Ct. R. 129 ; 29 L. Ed. 440.
t8. Zable v. Bank, 16 S. W. 588 (Ky.).
19. Wallace v. Field, 56 Mich. 3 ; 22 N. W. 91.
90. Routh v. Citz. Bank, 28 La. Ann. 569.
Howe v. Whited, 21 La. Ann. 495.
•1. Francis v. Church, 1 Clarke Ch. 475.
tJ. City of Baltimore v. Parlange, 25 La. Ann. 33S.
91. Smith v. Briscoe, 65 Md. 561; 5 Atl. 324.
LIENS 147
CHAPTER 5.
LIENS.
Section
1. POSSESSORY LIENS 148
A. Carriers 149
B. Inn-keepers H53
>C. Liverymen and Agisters 154
2. ATTORNEYS' LIENS 155
3. MECHANICS' LIENS—
A. In General 157
B. By Taking Debtor's Note 1,58
C. By Drawing Draft 163
•D. By Taking Mortgage 164
E. By Taking Collateral Security 166
F. iBy Personal Judgment, Attachment or Exe-
cution 168
G. Miscellaneous Waivers 170
4. VENDOR'S LIENS 172
1. POSSBSSOEY LIENS:— Sec. 148. There
are many liens that, as a condition of their validity,
require that the lien-claimant retain possession of the
property upon which the lien is asserted. In fact
all common-law liens have possession as their basic
element, and this element once lost, the lien is of no
more force or effect. This is true of the lien of a
carrier, an inn-keeper, a liveryman, an agister or a
warehouseman. And in any of such cases there is
one rule to be applied that will determine the status
of the lien — if possession of the property be volun-
tarily surrendered, any right to a lien thereon is
thereby waived94.
94. JKgan v. Spruce, 41 Fed. 830.
Ferrlss v. Schreiner, 43 Minn. 48 ; 44 N. W. 1083.
Hale v. Barrett, 26 111. 195 ; 79 A. D. 367.
Gregg v. 111. Cent. Ry., 147 111. 550 ; 35 N. E. 343 ; 37 A. S. R 231.
148 THE LAW OF WAIVES
A. CARBIEB'S :— Sec. 149. A common car-
rier labors under the obligation to receive and trans-
port any goods that may be offered, and, with certain
reservations, is liable for their safety until their de-
livery. By accepting the obligations and duties of a
carrier, such carrier is not invested with any prop-
erty rights in the goods transported ; such property
rights necessarily rest some other place. But the
carrier is given the right of control over the goods till
it is paid a reasonable compensation for its services,
and the right of control — or right of possession —
is the lien with which the carrier is endowed by law,
the right to retain the goods till carriage charges
thereon are paid. It matters not who consigns the
property or who is responsible for the freight, the
right to the lien runs against the true owner unless
he has been defrauded in the shipment95.
Sec. 150. But in order to avail himself of. the
lien, a carrier must retain actual possession of the
goods ; for the lien is its security for payment of the
carriage charges, and by destroying the foundation
of the lien in relinquishing possession of the proper-
ty, it is deemed to have elected to look to the person-
al responsibility of the owner or consignee and in
such election to have abandoned the security given
it by law. In other words, the lien of a carrier of
'goods is waived by a voluntary relinquishment of
possession without requiring payment of carriage
charges96. But it is evident that the relinquishment
95. Robinson v. Baker, 5 Gush. 137; 61 A. D. 64.
96. Gring v. Lumber, 38 Fed. 528.
Wingard v. Banning, 39 Cal. 543.
Bigelow v. Heaton, 4 Denio 496.
LIENS 149
of possession must be voluntary, for if it be obtained
through subterfuge or by fraudulent means, the lien
will be held not waived — waiver in this as in other
cases being induced by an intentional act or by con-
duct so inconsistent with any other intention as to
cause an intended surrender to be implied97. And it
will be seen that the surrender of possession must be
with the intention that the carrier will part with his
interest in the goods delivered, and it has therefore
been held that where possession was relinquished
under the belief that the carriage charges would be
paid at the time the lien was not lost98. And the car-
rier may make any kind of agreement with the owner
of goods as to conditions to be annexed to a surren-
der of possession, or that such surrender shall not
operate as a waiver, and any such agreement will be
given effect by the courts and the lien sustained99.
But if the delivery be voluntary and unconditional,
the lien will be waived no matter what motives in-
duced the surrender of possession100.
S'ec. 151. While a carrier's lien depends upon
possession for its validity, it does not follow that the
mere surrendering of possession is the only means
through which a waiver of the lien occurs. Such
waiver will be impli ed if the carrier attach for freight
Reineman v. Ry. Co., 51 la. 338 ; 1 N. W. 619.
Gregg v. HI. Cent. Ry., 147 111. 550 ; 85 N. E. 343.
Lake Shore Ry. v. Ellsley, 85 Pa. St. 283.
Bailey v. Quint, 22 Vt. 474.
91. Geneva, etc. Ry. v. Sage, 35 Hun 95 (N. T.).
Bigelow v. Heaton, supra.
98. 151 Tons Coal, 4 Blatchf. 368.
$9. The Eddy, 5 Wall. 481 (IT. S.).
100. Sears v. Wills, 4 Allen 212.
150 THE LAW OF WAIVER
charges the property upon which the lien is claimed1,
or levy an execution upon it, or put its refusal to de-
liver upon the ground that the goods are not in its
possession at the place where demand is made2, or
negligently damage the goods in an amount in excess
of the charges3; and the lien is waived where, be-
tween the carrier and the consignor, there is a stipu-
lation for payment of freight at a place different
from that at which the goods were to be delivered,
for such an agreement must necessarily present the
inference that payment was not intended to be de-
manded as a condition precedent to delivery4.
Sec. 152. And a waiver occurs if the time ar-
ranged for payment of transportation charges be
inconsistent with the existing of a lien depending, as
that of a carrier does, upon possession for its valid-
ity. Thus, if credit for freight be given to a period
subsequent to the time when the goods are to be de-
livered, the lien is thereby displaced5 ; and the same
result follows the taking of notes or other security
payable after the time arranged for the delivery of
the goods transported6. But the taking of notes
for the charges is not a waiver of the right to a lien
if the notes mature prior to the time for delivery of
the goods carried.
1. Wingard v. Banning, 39 Cal. 543.
2. Adams Ex. Co. v. Harris, 120 Ind. 307; 16 A, S. R. 315.
3. Dyer v. Grand Trunk Ry., 42 Vt. 441 ; 1 A. R. 350.
4. Raymond v. Tyson, 17 How. 53 (U. S.).
6. Pinney v. Wells, 10 Conn. 104.
Chandler v. Belden, 18 Johns. 157 ; 9 A. D. 193.
Plckman v. Woods, 6 Pick. 241.
6. Bird of Paradise, 5 Wall. 545 (U. S.).
LIENS 151
B. INN-KEEPERS:— Sec. 153. A Hen is re-
served by law in favor of inn-keepers and boarding-
house keepers upon the property of their guests turn-
ed over to them, for charges of entertainment. But
this lien depends for its validity upon the keeper's re-
taining possession of the property till the charges are
paid, for his loss of possession is the loss of his
lien unless the goods were taken from him through
the fraud of the guest, in which event the lien is not
lost nor released7. It is of no moment whether the
charges be paid or not, the question whether such a
lien has 'been released or waived must depend upon
the proposition whether or not the keeper has volun-
tarily relinquished the goods without first demand-
ing payment of the charges. If this proposition be
shown in the affirmative, then the lien is waived.
But a waiver may also occur by the keeper's taking
security for his charges inconsistent with the con-
tinued existence of the lien. And it may also be
shown by an agreement for payment at a future time
which in itself is preclusive of an intention that the
lien shall continue.
C. LTOEiRYMEN AND AGISTEBS :— Sec.
154. The rules announced are equally applicable
where the lien is that of a liveryman or agister upon
an animal cared for. But more difficulty is encount-
ered in applying the rules ; for, while the voluntary
surrender of possession of the animal constitutes a
waiver of the lien, it is not always easy to declare
what is such a surrender of possession as will con-
stitute waiver. Thus, the keeper of a horse may per-
7. Manning v. Uollenbeck, 27 Wis. 202.
152 THE LAW OF WAIVER
mit the owner to take the horse for a temporary use
with the implied understanding that it will be re-
turned, and in such event the lien will be held not
waived, for the necessary intention, either express
or implied, is lacking8. But the effect is otherwise
if possession be delivered to the owner for more than
a temporary use or without an understanding that
the animal is to be returned to the keeper9.
2. ATTORNEYS 'LIENS:— Sec. 155. In some
states an attorney has a lien against a judgment pro-
cured for his client for his fees earned in the case.
The lien cannot be divested except by some act of the
attorney himself or of some one with his knowledge
and approval. But, like any other lien, it may "be
lost or waived, and a waiver will be construed from
any act of the attorney indicating an intention not
to rely upon or enforce the lien. It may be waived
by any transaction or arrangement for payment by
which the attorney looks to other security or mode
of payment. But the intention that the lien shall
no longer exist should be made to clearly appear or
a waiver should not be inferred10. The lien is not
waived by a delay of several years to collect the de-
mand if there is no negligence on the part of the at-
torney, and the debtor has notice of the lien11 ; nor
will th* fact that the judgment has become dormant
8. Wall v. Long, 2 Ind. App. 202; 28 N. E. 101.
Young v. Klmb^l, 23 Pa. St. 193.
Caldwell v. Tutt, 10 Lea 258 ; 43 A. R. 317.
9. Seebaum v. Handy, 46 Oh. St. 560; 22 N. E. 869.
Ferris v. Schreiner, 43 Minn. 48; 44 N. W. 1083.
Paplneaw v. "Wentworth, 136 Mass. 543.
Estey v. Cooke, 12 Nev. 276.
10. Rentek v. Ludlngton, 16 W. Va. 378.
11. Stone v, Hyde, 22 Me. 318.
LIENS 153
• &•'• - <?
and has been revived by other attorneys deprive an
attorney of his lien upon the judgment12; nor does
an attorney waive his lien by taking the note of his
client for his fee13.
Sec. 156. But a lien upon a specific fund is
waived where an attorney accepts an assignment of
the fund itself14. And the lien is lost to him who pro-
cures a satisfaction of the judgment upon which the
lien exists15, or releases property from the operation
of the judgment1'. And it has even been held that
the recovering of a judgment for his services against
his client is a waiver of the attorney's lien17;
but to the writer's mind this holding is of question-
able propriety, especially if the judgment against
the client be uncollectible.
3. MECHANICS' DIENiS.
A. IN GENERAL :— Sec. 157. The right to a
mechanic's lien, like any other legal right or benefit,
may be relinquished or waived by him who is entitled
to it ; and such waiver may arise either from an ex-
press or implied consent or from a course of con-
duct calculated from its nature, to inspire a belief
that the right would not be asserted. No difficulty, of
course, arises where an express waiver has been
made; but much confusion has been met in cases
where an implied consent to such waiver has been
alleged, or where conduct is such that an intention
12. Jenkins v. Stephens, 60 Ga. 216.
13. Davis v. Jackson, 80 Ga. 138.
14. Fulton v. Harrington, 7 Houst. 182.
15. Cowcn v. Boone, 48 la. 350.
16. Wishard v. Biddle, 64 la. 526 ; 21 N. W. IB.
17. Clark v. Dickerman, 95 Mich. 289.
154 THE LAW, OF WAIVEB
to waive is sought to be deduced from it. The
authorities are not uniform in their statements as to
what facts are sufficient to constitute a waiver of the
right to such a lien. But after much sifting of rea-
sons, the cases have converged to a point of compara-
tive ilnifomiity in their annunciation of principles
governing the waiver of the lien, the main point of
difficulty now beiog the application of these prin-
ciples to the facts of each particular case. And it
will fee seen from an examination of recent cases that
the question of waiver or non- waiver of a mechanic's
lien or the right thereto resolves itself into merely
a question of what intention can be implied from a
party's conduct, the waiver in all oases being one of
intent. Many different states of fact have been al-
leged in attempts to show that the lien or the right
thereto has been waived; and in the following sec-
tions will be shown what have and what have not
been held to constitute a waiver.
B. BY TAKING DEBTOR'S NOTE:— 6ea
158. The taking of a note for the amount due one
entitled to a mechanic's lien may or may not consti-
tute a waiver of the right to the lien according to the
intent with which it is received. Ordinarily a note
is not a payment of a debt, but only a promise to pay,
or an item of evidence showing an indebtedness.
And so it is said: "A note, unless it is taken in
payment absolutely, will not discharge a mechan-
ic's lien. It serves but to liquidate the demand, and
leaves the party to seek his satisfaction upon the
original contract"18. The right to a lien is not lost
18. Phillips, Mech. Liens, 3d Ed. 27«.
LIENS 155
'by the taking of a note maturing within the time al-
lowed by law for foreclosing the lien19 ; and this la
true even though the date of maturity is after the
time limited by law for filing the lien20. In fact, no
acceptance of a note is sufficient to waive the right
to a lien unless there is at the same tisie a positive
agreement for such waiver21. And it makes no dif-
ference that a receipt is given at the same time the
notes are received stating that they are in payment
19. Schmidt v. Gilson, 14 Wis. 517.
Bailey v. Hull, 11 Wls. 289 ; 78 A. D. 706.
Charlotte v. Hammond, 9 Mo. 58; 43 A. D. 536.
Doane v. Clinton, 2 Utah 421.
20. McMurray v. Taylor, 30 Mo. 264; 77 A. D. 611.
Ashdown v. Woods, 31 Mo. 466.
Miller v. Moore, 1 E. D. Smith 739.
Kllpatrick v. K. C. Etc. By., 38 Neb. 620; 57 N. W. M4;
41 A. S. R. 761.
21. Logan v. Attex, 7 la. 77.
Brady v. Anderson. 24 111. 110.
Mllwain v. Sanford. 3 Minn. 147.
Doane v. Clinton, 2 Utah 417.
Edwards v. Derriekson, 28 N. J. 39.
Gere v. Gushing:, 5 Bush 304.
Leftwich Lbr. Co. v. Florence Assoc., 104 Ala. 584 ; 18 So. 4t.
Paddock v. Stout, 121 111. 571; 13 N. E. 182.
Dawson v. Black, 148 111. 484; 36 N. E. 413.
Millikin v. Armstrong, 17 Ind. 456.
Bashor v. Nordyke Co., 25 Kans. 222.
Pope v. Graham, 44 Tex. 196.
McDonald v. Ry. Co., 93 Tenn. 281 ; 24 S. W. 252.
Wheeler v. Schroeder, 4 R. I. 383.
Allls v. Distilling Co., 67 Wis. 16 ; 29 N. W. 543.
Fisher v. Rush, 71 Pa. St. 40.
Trullinger v. Kofoed, 7 Oreg. 228.
Bernsdorf v. Hardway, 7 Oh. Cir. Ct. R. 378.
Barnocle v. Hendrickson, 42 Neb. 169; 60 N. W. 38S.
O'Brien v. Hanson, 9 Mo. App. 546.
Md. Brick Co. v. Spilman, 76 Md. 337; 25 Atl. 297.
McKe*n v. Haseltine, 46 Minn. 426 : 49 N. W. 195.
Smith, Etc. Co. v. Butts, 72 Miss. 269 ; 16 So. 242.
Wia. Tr. Co. v. Robinson Co., 68 Fed. 778 ; 15 C. C. A. 6«8.
Meek v. Parker. 63 Ark. 367 ; 38 S. W. 900 ; 58 A. S. R. lit.
156 Tfia LAW OP
of the indebtedness22, for a receipt is always open
to explanation*8 in the matter of a lien the same as
in other cases24.
Sec. 159. Whether or not a note accepted by
a lien claimant constitutes a payment sufficient to
debar a right to a lien is a question of fact25, although
contrary to the doctrine mentioned above, it has
been held that the acceptance of a note is as a mat-
ter of law at least prima facie evidence of payment
and, consequently, a waiver of the lien26; but the
weight of authority denies the soundness of this
principle27, some cases even holding that where it is
expressly agreed that the note shall be received in
payment, yet the agreement is conditional, contin-
gent on the note's being paid at maturity and in
default of such payment the original cause of ac-
tion revives28. The fact that the note given by the
debtor draws interest does not interfere with the
application of the foregoing principles, for it is not
a waiver of the right to a lien29.
22. Hoa&land v. Lusk, 33 N«»b. 376; 50 N. W. 162; 29 A. S. R. 486.
McMurray v. Taylor, 80 Mo. 263 ; 77 A. D. 611.
Shaw v. Pres. Cbyrch, 39 Pa. St. 226.
Wheeler v. Sehroeder, 4 R. I. 385.
Goble v. Gale, 7 Blackf. 218 ; 41 A. D. 219.
23. McMurray v. Taylor, supra.
Peter v. Beverly, 10 Pet. 568 (U. S.).
See: Jones v. White, 72 Tex. 316; 12 S. W. 179.
24. Glenn v. Smith, 2 Gil. & J. 493 ; 20 A. D. 452.
Tobey v. Barber, 5 Johns. 68 ; 4 A. D. 326.
25. Casey v. Weaver, 141 Mass. 280; 6 N. B. 372.
26. Mehan v. Thompson, 71 Me. 492.
Teal v. Spangle, 72 Ind. 380.
27. Whltla v. Taylor, 6 La. Ann. 480.
Sweet v. James, 2 R. I. 270.
28. Crary v. Bowers, 20 Cal. 88.
Crawford v. Roberts, 50 Cal. 28*.
29. Schmidt v. Gilson, 14 Wls. 514.
Brady v. Anderson, 24 111. 110.
LIENS 157
Sec. 160. But there are circumstances under
which the taking of a note may prohibit the enforc-
ing of a lien. If the note cover items other than
those in the lien claim, it will operate as a waiver30.
And also a waiver will occur if the note is intended
and accepted as a full payment and discharge of the
indebtedness?1. Of course a waiver follows an
agreement -therefor32, and even w,here a third party
guarantees payment of the note33. But the accept-
ance of the note of a third person who afterwards
becomes insolvent, in part payment for the construc-
tion of a buifding, although without the knowledge
of the surety on the contractor's bond, does not con-
stitute such a change in the contract as to release the
surety, the contractor, in the absence of a prohibi-
tion, having the right to waive payment in money34.
•Sec. 161. A distinction sometimes arises in the
case of the negotiation of a note taken on account
for a mechanic's lien. In this connection it has been
held that the discounting of a note at a bank is not a
waiver of a lien if the note can be surrendered at
the trial on the lien, and the payee may prosecute
the suit to the use of his assignee35. In a South
Dakota case it is said: "We are unable to discover
80. Blakely v. Moshier, 94 Mich. 299 ; 54 N. W. 54.
Schulenburg v. Robison, 5 Mo. App. 561.
SI. Coburn v. Kerswell, 35 Me. 126.
McCoy v. Quick, 30 Wis. 521.
Teal v. Spangler, 72 Ind. 380.
Vason v. Bell, 53 Ga. 416.
Crooks v. Finney, 39 Oh. St. 57.
82. Button v. Ins. Co., 29 N. H. 153.
88. Kankakee Coal Co. v. Crane Co., 138 HI. 207; 27 N. E. 935.
84. Foster v. Gaston, 123 Wis. 96.
85. Morrison v. Laura, 40 Mo. 260.
Hill v. Alliance Co., 6 8. Dak. 160; 60 N. W. 752; 65 A. S. R.
819.
THE LAW OF WATVEB
a valid reason for holding that the assignment of a
debt by a person who is entitled to a mechanic's
lien as security therefor is alone sufficient to consti-
tute a waiver of such lien; and the fact that a note
was taken, not in payment of the debt, but for the
accommodation of the debtor ***** has no
tendency to create a waiver or discharge of the lien
while the debt remains unpaid, and the lien may be
enforced by the assignee "36. And further: "The
negotiation of the note neither defeated nor sus-
pended the right of the claimants and payees therein
named in case they had been called upon to take up
the note"37. The weight of authority sustains these
principles38.
S'ec. 162. It has been held, however, that nego-
tiation of the note bars the lien39, although it is said
in the same state that a mere attempt at negotiation
36. Hill v. Alliance Co., supra, citing:
Kerr v. Moor«, 54 Miss. 286.
Skyrme v. Occ'd. Etc. Co., 8 Nev. 219.
Rankin v. Thompson, 7 Colo. 381.
Sweet v. James, 2 R. I. 270.
Smith v. Johnson, 2 McAr. 481.
Alken v. Fannie Barker, 40 Mo. 257.
Tuttle v. Howe, 14 Minn. 145 ; 100 A. D. 205.
Phillips, Mech. Liens, Sees. 275-7.
37. Hill v. Alliance Co., supra, citing:
German Bank v. Schloth, 59 la. 316 ; 13 N. "VT. 314.
Miller v. Moore, 1 E. D. Smith, 739.
Teaz v. Chrystle, 2 Abb. Pr. 109.
Clement v. Newton, 78 111. 427.
Sweet v. James, 2 R. I. 270.
15 A. & E. Enc. Law, 106.
Phillips, Mech. Liens, Sec. 278.
38. Truet Co. v. Robinson Co., 68 Fed. 778; 16 C. C. A. <68 ; SI
U. S. App. 435.
Beers v. Knapp, Fed. Cas. No. 1232.
39. Scott v. Ward, 4 G. Greene 112 (la.).
See also: East v. Ferguson, 59 Ind. 1C*.
Schneider v. Kolthoff, 59 Ind. 568.
LIENS 159
•will not produce such consequences41. And further
in the same state that transferring the note will bar
the right to a lien while the note is in the hands of
a stranger to the original contract, 'but that if the
note 'be dishonored and the payee take it up he may
still enforce the lien41. So, where the note, after in-
dorsement, was indorsed back to the original payee,
the right to a lien was held intact42. But an action
brought to foreclose a mechanic's lien was dismissed
where plaintiff had taken notes for the claim and
it appeared that these were not under his control43.
It will be seen from an examination of the cases that
the right to assert a lien will usually be allowed al-
though notes have been given covering the claim, if
the notes are surrendered at trial for cancellation.
This principle is just to both parties, as it gives the
mechanic all the rights he had in the first place, and
is of no injury to the claim-debtor since he usually
has the benefit of an extension of time by reason of
the giving of the notes. Thus, a workman who ne-
gotiated a note taken for his labor but took it up
prior to filing his claim, and surrendered it in court,
was not denied enforcement of his lien44. But a de-
cree will not be ganted on a lien until the plaintiff
is in control of the note given for the amount and
offers to surrender it45, unless it has already been
40. Hawley v. Warde, 4 G. Greene 36 (la.).
41. German Bank v. Schloth, 59 la. 316; 13 N. W. 314.
Edwards v. DerricksoH, 28 N. J. L. 39.
Graham v. Holt, 43 Ky. 61.
42. Bashor v. N. & M. Co., 25 Kans. 222.
45. McDuffee v. Rea, 13 Pa. Co. Ct. R. 2«1.
44. Davis v. Parsons, 157 Mass. 584; 32 N. E. HIT.
4i. Bayard v. McGraw, 1 111. A»p. 1S4.
Clement v. Newton, 78 111. 427.
160 THE LAW or WAIVES
given up ; for if it were still out, payment of its face
value could be enforced by an innocent holder for
value, and the debtor thus compelled to answer twice
for the debt46;
C. BY DRAWING DRAFT:— ®ec. 163. The
drawing of a draft on the lien debtor which is ac-
cepted is held not to, be. a waiver of the right to a
lien47. And, 'of course, an unaccepted draft could
not constitute a waiver48.'"
. . * »«.- ' «r -'.-,-. £.,,.'„* J!*'T '' '• i
D. BY TAKING MORTGAGE :— Sec. 164. The
statutes of some states provide that the taking of
collateral security is a waiver of the right to a me-
chanic's lien. But it is said that the taking of a
mortgage on the property on which one is entitled
to a lien is not taking collateral security and, there-
fore, such statute is not applicable49. Irrespective
of any such statute, however, the cases present a
condition of irreconcilable division as to whether the
taking of a mortgage on property constitutes a
waiver of the right to a lien on the same property
for the same debt. And here, as in the case of tak-
ing a note, the criterion has been held to be the in-
tention with which the mortgage is accepted. For
it was said by a Federal court that the taking of
security on the same property is not a waiver of the
46. Morrison v. The Laura, 40 Mo. 260.
Balkcom.v. Lbr. Co., 91 Ga. 651;- 17 S. E. 1020.
Rush v. Fisher, 8 Phila. 44.
47. Jones v. White, 72 Tex. 316; 12 S. W. 179.
Gere v. Gushing, 5 Bush 304. -••"»'"« •* *
Meeks v. Simms, 84 111. 422.
Bodley v. Denmead, 1 W. Va. 249.
Mehan v. Thompson, 71 Me. 492.
48. Palmer v. Mining Co., 70 Cal. 614; 11 Fac. 668.
49. Gilchrlet v. Gottschalk, 39 la. 311.
LIENS 161
right to a mechanic's lien unless it appears affirma-
tively that it was the intention of the holder of the
claim to look to such security and not to the lien50.
And this proposition is sustained in other cases51.
Some courts' hold without any equivocation that
a mechanic's lien on real property is waived by the
taking of a mortgage on the property to secure the
lien-claim52. And some go so far as to say that even
an agreement for the acceptance of a mortgage con-
stitutes a waiver of the lien, the two securities being
inconsistent53. In support of these views, it is said
by an Oregon court : ' ' The rule seems to be well set-
tled that where a mechanic takes a mortgage, either
on the same property to which the lien attaches or on
other property, he thereby waives his lien, and the
reason is, as observed in many of the cases cited, that
subsequent lien-holders and purchasers have a right
to rely on the record, and should be protected against
secret liens. In this case it is true that the lien was
filed at the same time the mortgage was given, but if
the general doctrine be established that the taking of
a mortgage on the property is not a waiver of the
mechanic's lien, a mechanic may hold a mortgage on
10. Hale v. Burlington Ry., 13 Fed. 203 ; 2 McCreary 558.
11. Henry & Co. v. Bond, 37 Neb. 207 ; 55 N. W. 643.
Chapman v. Brewer, 43 Neb. 890; 62 N. W. 320; 47 A. S. R.
779.
Boyle v. Robbins, 71 N. Car. 130.
Hall v. Pettlg^-ove, 10 Hun 609.
Roberts v. Wilcoxon, 36 Ark. 355.
IS. Trulllnger v. Kofoed, 7 Oreg. 228; 33 A. R. 708.
Gardner v. Hall, 29 HI. 277.
IS. Barrows v. Baughman, 9 Mich. 213.
Gorman v. Sagner, 22 Mo. 137.
Weaver v. Demuth, 40 N. J. L. 238.
Willison v. Douglass, 66 Md. 99 ; 6 Atl. 530.
162 THE LAW OP WAIVER
the property and afterward, at any time allowed by
the statute, file his lien."54.
Sec. 165. Other cases are just as positive in
support of the contrary view and say that under such
facts no waiver takes place 55. The better reasoning
would seem to support the view that whether the
taking of a mortgage is a waiver of the right to a lien
on the mortgaged property is a question of intention
to be deduced from the facts of each particular case,
but that innocent third parties, relying on the record,
shoud not be caused to suffer on account of such
reliance.
E. BY TAKING COLLATERAL SECURI-
TY:— Sec. 166. As has been above noted, the stat-
utes of 'some states provide that the taking of collat-
eral security is an abandonment of the right to a
mechanic's lien56. In the absence of such a statute,
there is as to this proposition, also, a hopeless conflict
among the authorities. But here, too, it is thought
that the matter should be determined according to
the intent of the parties. So, a Nebraska court has
said that the taking of collatera security for an
account for materials furnished is not a waiver of the
right to assert a lien unless such was the intention of
both parties57. And the Minnesota court holds the
i4. Trullinger v. Kofoed, supra.
fS. Kingsland Co. v. Massey, 69 Miss. 296 ; 13 So. 269.
Parberry v. Johnson, 51 Miss. 291.
Hall v. Pettlgrove, 10 Hun 609.
61. Kentucky.
Georgia.
Iowa.
New Mexico.
North Dakota.
South Dakota.
§7. Union Bank v. Baker, 42 Neb. 880 ; 61 N. W. Jl.
LIENS 163
same way by saying somewhat conversely that the
taking of other security is not a waiver if it appears
that such was not the intention of the parties58. And
the Iowa courts, being bound by a statute declaring
that the taking of collateral security waives the lien,
yet say that in order to produce this consequence the
contract, promise or property taken must be taken
and accepted as collateral security69. And in that
state it is held that the statute does not apply to a
case where the claimaint albandons the security and
relies on the lien60. A contractor assigned to a mat-
erial-man all his rights under his contract with the
owner of the building as security for the price of
materials furnished, and the acceptance of this secur-
ity was held no waiver of the right to a lien on the
building and premises61 ; and neither is the accepting
a bond or warrant of attorney62. The agreement for
security, it is said, must be inconsistent with the
enforcement or existence of the lien63. And in pos-
sibly a majority of the states it is held that in the
absence of statutory provision the taking of collater-
al security is not necessarily inconsistent with an
intention to preserve the lien64. A resrpecta'ble line of
58. McKeen v. Haseltine, 46 Minn. 426 ; 49 N. W. 195.
Kilpatrick v. Kans. City Co., 38 Neb. 620; 57 N. W. 664; 41 A. S.
R. 741.
59. Merwin v. Sherman, 9 la. 331.
60. Getchell v. Musgrove, 54 la. 744 ; 7 N. W. 154.
•1. Taliaferro v. Stevenson, 58 N. J. L. 165 ; 33 Atl. 383.
•2. In re Thompson, 2 Browne 297 (Pa.).
63. Md. Brick Co. v. Spilman, 76 Md. 337; 25 Atl. 297; 35 A. S. R.
431.
«4. JoBlyn v. Smith, 2 N. Dak. 53 ; 49 N. W. 382.
Peck v. Bridwell, 10 Mo. App. 524.
Howe v. Kindred, 42 Minn. 433 ; 44 N. W. 311.
Ford v. Wilson, 85 Ga. 109; 11 S. E. 559.
Montandon v. Deas, 14 Ala. 46.
Smith, Etc. Co. v. Butts, 72 Miss. 269 ; 16 So. 242.
164 THE LAW OF WAIVER
authorities, however, hold to the proposition that the
acceptance of such security is an implied waiver of
the right to a lien65.
Sec. 167. A difficulty sometimes arises as to
what is and what is not collateral security. Thus, the
promise of a subsequent purchaser of the land to pay
the lien -claim is not collateral security66. And a
husband's contract as agent for his wife for materials
to be used in a building on her land and his personal
promise to pay therefor is not collateral security67 ;
neither is the taking of a partnership note indorsed
by one of the partners individually68 ; nor the giving
of the individual note of the president of a corpor-
ation for the company's debt69. On the other hand,
the taking of a firm note for the individual debt of
one of the partners for which deb^ a material -man
is entitled to a lien, is such collateral security as
waives the lien70. And a cash deposit to insure
performance of the contract is collateral security71.
But the taking of a note with personal indorsements
is not a waiver72, although taking the note of a third
person in payment is73. In Nebraska it is held that
the taking of a chattel mortgage for the lien claim is
(5. Grant v. Strong, 18 Wall. 623 (U. S.).
Clark v. Moore, 64 111. 279.
Ehler v. Elder, 51 Miss. 499.
Willison v. Douglas, 66 Md. 99; 6 Atl. 530.
Bailey v. Adams, 14 Wend. 201 (N. Y.).
66. Mervin v. Sherman, 9 la. 331.
67. Bissell v. Lewis, 56 la. 231 ; 9 N. W. 177.
68. Millikin v. Armstrong, 17 Ind. 456.
69. Allis v. Meadow, etc., 67 Wis. 16; 29 N. W. 543; and 30 N. W.
300.
70. Croskey v. Corey, 48 111. 442.
VI. Harrison Co. v. Council Bluffs Co.. 25 Fed. 170.
Shickle Co. v. Council Bluffs Co., 38 Fed. 18.
72. Smith, Etc. Co. v. Butts, 72 Miss. 269; 16 So. 242.
73. Button v. Ins. Co., 29 N. H. 153.
LIENS 165
collateral security, but that the taking of such secur-
ity is not a waiver of the lien74 ; but in Illinois the tak-
ing of a chattel mortgage is held a waiver75. The
better reasoning is with the authorities holding that
the taking of collateral security for the lien claim is a
waiver of the right to the lien ; for undoubtedly such
security is inconsistent with an intention to preserve
and rely upon the lien.
F. BY PERSONAL JUDGMENT, AT-
TACHMENT OR EXECUTION:— Sec. 168. Ob-
taining a personal judgment against a Hen-debtor is
not a waiver of the lien76. This was held true where
the parties agreed that the judgment should be a
lien against the property, although the agreement
was invalid77. And an action on a note taken as
collateral security has been held no waiver of the
lien78, although there can be but one satisfaction.
The fact, however, that there is- a suit pending on the
deibt is no bar to an action to enforce the lien79. An
action in assuinpsit is not a waiver of the right to
enforce a lien80. Mr. Boisot cites several cases in
support of the proposition that an action at law on
74. Hoagland v. Lusk, 33 Neb. 376; 50 N. W. 162; 29 A. S. R.
485; citing:
Ford v. Wilson, 85 Ga. 109; 11 S. E. 559.
Howe v. Kindred. 42 Minn. 433 ; 44 N. W. 311.
Hinchman v. Lyband, 14 Serg. & R. 32 (Pa.).
Montandon v. peas, 14 Ala. 33: 48 A. D. 84.
75. Kinzey v. Thomas, 28 111. 505.
76. German, Etc. Assoc. v. Wagner, 61 Cal. 349.
Marean v. Stanley, 5 Colo. App 335 ; 38 Pac. 395.
Vandyne's Ex'rs. v. Vanness, 5 N. J. Eq. 485.
U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698; 21 S. E. 769.
77. Kirkwood v. Hoxie, 95 Mich. 62; 54 N. W. 720; 35 A. S. R. 549.
78. Gambling v. Haight, 59 N. Y. 354.
Dickson v. Corbet, 11 Nev. 277.
79. Parmlee v. Tenn., Etc. Co., 81 Tenn. 600.
80. Spence v. Etter, 8 Ark. 69.
166 THE LAW OF "WAIVES
the lien debt and a personal judgment therein are
not a waiver of the lien, and the lien does not become
merged in the judgment81. It is held, however, that
the right to a lien is a special privilege and that by
joining the lien claim with other demands the lien is
lost or waived82. The above propositions, however,
have apparently been contradicted in Missouri83.
Sec. 169. So it is held that the procuring an
attachment is not a waiver of the right to assert a
lien. It is said that the lien is not waived nor for-
feited by causing an attachment to be issued and
levied upon the property of the debtor to secure the
same demand, as the remedies are cumulative and
may be pursued at the same time. In case, however,
of an attempt to pursue them in separate actions, the
party might be put to his election, but it is no de-
fense to an action to enforce the lien that in a pre-
vious suit for the same debt an attachment was is-
sued and levied upon the property of the debtor,
especially where such suit was dismissed and nothing
realized by the attachment84.
81. Boisot, Mech. Liens, Sec. 709 :
Cheshire Ins. Co. v. Stone, 62 N. H. 365.
Anderson v. Huff, 49 N. J. Eq. 349 ; 23 Atl. 654.
Fisher v. Rush, 71 Pa. St. 40.
Crean v. McFee, 2 Miles 214 (Pa.).
Fox v. Seal, 22 Wall. 424 (U. S.).
82. Bickwell v. Trickey, 34 Me. 273; followed in:
McCrillis v. Wilson, 34 Me. 286 ; 56 A. D. 655.
Perkins v. Pike, 42 Me. 141 ; 66 A D. 267.
Union Slate Co. v. Tilton, 73 Me. 212.
83. Hayden Slate Co. v. Nat'l., Etc. Co., 62 Mo. App. 569.
84. Brenan v. Swasey, 16 Cal. 140; 76 A. D. 507, cited in:
Salt Lake Co. v. Ibex Co., 15 Utah 440; 49 Pac. 768; 62 A.
S. R. 944, citing also:
West v. Fleming, 18 111. 248 ; 68 A. D. 539.
Germania Assoc. v. Wagner, 61 Cal. 349.
LIENS 167
It has been held that the issuance of a general
execution is a waiver of the right to enforce a me-
chanic's lien85, for thereby the creditor manifests an
intention to abandon the lien on specific property and
rely wholly on the personal responsibilty of the
debtor.
G. MISCELLANEOUS WAIVERS :— Sec. 170.
An agreement of a material-man to look solely to the
contractor for payment for lumber going into a build-
ing has been held to waive the right to assert a
mechanic's lien for the material so furnished86. An
agreement not to file a lien on a building for work
done thereon is a complete waiver even though the
owner fail to make payment as provided in the con-
tract87. It is said that a provision that no liens
shall be filed by any sub-contractor or any other per-
son is not a waiver of the right to a lien accruing to
the contractor88 ; although in the same state it is said
that a contractor waives his own right to a lien when
he agrees that he will not permit any liens to be
filed against the building for six months89. 'Submis-
sion of the matter in dispute to arbitration is a
waiver of the right to a lien90. But an agreement to
take a mortgage is no waiver, especially if the agree-
86. Kirk v. Taliaferro, 16 Miss. 754.
86. Sodinl v. Winter, 32 Md. 130.
Murray v. Earle, 13 S. Car. 871.
Isenman v. Fugate, 36 Mo. App. 66.
Shropshire v. Duncan, 25 Neb. 485; 41 N. W. 403.
87. Mathews v. Young, 16 Misc. Rep. 525; 40 N. Y. Supp. 26.
Brzezinski v. Neeves, 93 Wis. 567; 67 N. W. 1125.
88. Commonwealth, Etc. Co. v. Ellis, 5 Pa. Dist. R. 33.
89. Scheid v. Rapp, 121 Pa. St. 593 ; 15 Atl. 652.
90. N. Y.. Etc. Co. v, Schneider, 15 Daly 15; IN. Y. Supp. 441; IS
Civ. Proc. R. 30.
168 THE LAW OP WAIVER
ment is never executed91, and the same is true where
notes are to be given92. An agreement to extend the
time for payment beyond the period within which
suit must be brought to enforce the lien, is a waiver
of the lien93. But the rule is otherwise if the exten-
sion be within such period94. Beleasing part of
property subject to a lien is not a waiver as to that
not released95. If one having a lien on property
join in a conveyance of the property, he waives his
lien96. So, if the owner promise to pay a sub-con-
tractor and the latter fail to file a lien, he thereby
waives it97. But an agreement to take property in
payment is not a waiver98. Eetaining title for the
purchase price of machinery is not a waiver of a lien
on the land on which it is placed99. Neglecting to
perfect a lien or to file suit on it in time is a waiver
of the lien100. Proving the debt in bankruptcy and
91. Barnard Co. v. Galloway, 5 S. Dak. 205 ; 58 N. W. 565.
Gardner v. Hall, 29 111. 277.
92. Globe Co. v. Doud, 47 Mo. App. 439.
Van Stone v. Stillwell Co., 142 U. S. 128; 12 Sup. Ct. 181 ; 35 L,.
Ed. 961.
93. Hardin v. Marble, 13 Bush 58.
Green v. Fox, 7 Allen 85 (Mass.).
Scudder v. Balkam, 40 Me. 291.
94. Paddock v. Stout, 121 111. 571 ; 13 N. E. 182.
Schmidt v. Gllson, 14 Wis. 514.
Ashdown v. Woods, 31 Mo. 465.
Bodley v. Denmead, 1 W. Va. 249.
Montandon v. Deas, 14 Ala. 46.
95. Rellly v. Williams, 47 Minn. 590; 50 N. W. 826.
Carr v. Hooper, 48 Kans. 253 ; 29 Pac. 398.
96. Alexander v. Slavens, 7 B. Mon. 356 (Ky.).
97. Andre v. Bodman, 13 Md. 255.
98. Pierce v. Marple, 148 Pa. St. 69 ; 23 Atl. 1008.
99. Case Co. v. Smith, et al., 40 Fed. 339 ; 5 L. R. A. 231.
Great West. Co. v. Hunter, 15 Neb. 32 ; 16 N. W. 759.
Cooper v. Cleghorn, 50 Wls. 113 ; 6 N. W. 491.
Chicago Co. v. Union Co., 109 U. S. 719 ; 27 L. Ed. 1088.
100. Hughes v. Lansing, 34 Oreg. 118; 55 Pac. 95; 75 A. S. R. 574.
LIENS 169
receiving a dividend thereon do not constitute a
waiver of the lien1. Merely accounting and adjust-
ing the amount due cannot be construed as a waiver
of the right to a lien for such amount2.
Sec. 171. A mechanic's lien may be waived by
an agent3. And a waiver by a contractor has been
held a bar to the right of a sub-contractor to enforce
a lien, the former having contracted with the owner
that no liens should be placed on the building4. For
it is said "It is the plain and obvious duty of one
who deals with an alleged contractor to know the
relation he bears to the owner; failing in this, he
furnishes labor and material at his peril ' '5.
4. VENDORS' LIENS :-^Sec. 172. Many
years ago Mr. "Washburn had this to say about the
waiver of a vendor's lien: "This lien will be defeat-
ed if the vendor do any act manifesting an intention
not to reply on the land as security. What act is to
be deemed to work a waiver of a vendor's lien it may
not be easy to define. But it has been held that the
taking of the vendee's note or bond for the purchase-
money is not such an act, nor his check which is not
presented or paid, nor a renewal of the vendee's
note. It can only be waived by taking collateral se-
curity, or by an express agreement to that effect.
But the acceptance of a distinct and separate se-
1. Streeper v. McKee, 86 Pa. St. 188.
In re Hope Min. Co.. Fed. Gas. No. 6681.
*. Dennis v. Smith, 35 Minn. 494; 38 N. W. 695.
3. Hughes v. Lansing, 34, Oreg. 1.18; 55 Pac. 95: 75 A. S. R. 574.
4. Nice v. Walker, 153 Pa. St. 123; 25 Atl. 1065; 34 A. S. R. 6S8.
Caswell, Etc. v. O'Brien, 156 Pa. St. 172; 27 Atl. 131; 36 A.. S.
R. 30.
Waters v. Wolf, 162 Pa. St. 1B3 ; 29 Atl. 646: 42 A. S. R. 815.
5. Schroeder v. Galland, 34 Pa. St. 277; 19 Atl. 632; 19 A S. R.
891.
170 THE LAW OF WAIVER
curity for the purchase-money is a waiver, as, for
instance, a mortgage or other property, or a bond
or note with a surety or indorser, or a deposit of
stock. So where the vendor took notes for the pur-
chase-money and sold these, and the purchaser took
new notes from the maker; and the taking of notes
from a third party for the purchase-money is a waiv-
er of the lien, although it be the note of the husband
when the wife is the purchaser, provided, in these
cases, the presumption of a waiver is not rebutted
by satisfactory evidence that it was intended that
the vendor should retain the lien"6.
Sec. 173. The right of a vendor to a lien for
the purchase-money exists only in a part of the
states. And in those states recognizing the right it
is said that they are not to be much encouraged or
extended in their application beyond the require-
ments of settled principles of equity7. And the
question of the waiver of such a lien is one of in-
tention to be drawn from the acts or language of the
party entitled to the lien. The lien is not such an
interest in land as to require an instrument in writ-
ing to waive it8. It is a mere incident of the contract
of sale implied by law, and it may be waived or
abandoned bv any suitable act or oral declaration
showing an intention to do so on the part of one com-
petent to contract9. The principles announced by
6. 2 Washburn, Real Property, 507.
7. Cowl v. Varnum. 37 111. 181.
8. Anderson v. Donnell, 66 Ind. 150.
Hightower v. Rigsby, 56 Ala. 126.
Stuart v. Harrison, 52 la. 511.
». Woodall v. Kelley, 85 Ala. 368 ; 5 So. 164.
Ramage v. Towles, 85 Ala. 588; 6. So. 342.
Neal v. Speigle, 33 Ark. 63.
LIENS 171
Mr. Waskburn as noted above have been modified,
and different rules have been announced in some
cases, but in the main they have been affirmed. Thus,
it is said that the taking of the individual note, bond
or other covenant of the grantee will not indicate a
waiver of the lien10. But the lien is waived by the
taking of collateral security11, mortgage12, or other
property13, liability14, or note15 of a third person
whether collectible or not16, and also by the negotia-
Stevens v. Rainwater, 4 Mo. App. 292.
Coles v. Withers, 33 Grat. 186 (Va.).
Selna v. Selna, 125 Cal. 357 ; 58 Pac. 16 ; 73 A. S. R. 47.
Wilson v. Lyon, 51 111. 166.
Parker v. Lowell, 24 Tex. 238.
Carrico v. Bank, 33 Md. 242.
Buntin v. French, 16 N. H. 692.
Redford v. Gibson, 12 Leigh 332 (Va.).
Selby v. Stanley, 4 Minn. 65.
Griffin v. Blanchard, 17 Cal. 70.
10. Winn v. Lippincott, 125 Mo. 528 ; 28 S. W. 998.
Maroney v. Boyle, 141 N. T. 462; 36 N. E. 511; 38 A. S. R. 8*1.
Dowdy v. Blake, 60 Ark. 205; 6 S. W. 897.
Conlee v. Conlee, 87 Ind. 249.
Baum v. Grigsby, 21 Cal. 172 ; 81 A. D. 159.
Fish v. Howland, 1 Paige 30 ; 2 L. Ed. 549.
Mansfield v. Dameron, 42 W. Va. 794; 26 S. E. 527; 57 A. S. R.
884.
11. Dodge v. Evans, 43 Miss. 570.
Mayham v. Coombs, 14 Oh. 428.
Brown v. Oilman, 4 Wheat. 255 (U. S.).
Durette v. Briggs, 47 Me. 356.
Shelby v. Perrin, 18 Tex. 515.
12. Pease v. Kelley, 3 Oreg. 417.
Lagow v. Badolett, 1 Blackf. 416 ; 12 A. D. 258.
Houck on Liens, Sec. 202.
Avery v. Clark. 87 Cal. 619 ; 25 Pac. 919 ; 22 A. S. R. JT1.
Briscoe v. Callahan, 77 Mo. 134.
13. Manly v. Slason, 21 Vt. 277.
Ortman v. Plummer, 52 Mich. 76.
Hummer v. Schott, 21 Md. 311.
Chic. Land Co. v. Peck, 112 111. 408.
14. Fonda v. Jones, 42 Miss. 792.
Porter v. Dubuque, 20 la. 440.
16. Cresap v. Minor, 63 Tex. 485.
16. Kendrick v. Eggleston, 56 la. 128; 8 N. W. 786.
THE LAW or WAIVER
tion of the individual note of the purchaser17, al-
though the majority of courts modify this last rule
to the extent of saying that the lien is not ex-
tinguished 'by such transfer if the liability of the
transferor as indorser yet remain18, and if the in-
dorser be compelled to take the note up at maturity,
the lien revives in his favor19. Failing to enforce
the lien for a reasonable time is presumptively a
waiver20.
Sec. 174. Procuring a judgment for the unpaid
purchase-price of land is a waiver of the right to a
vendor's lien21, although it is said that this is not
the principle held by a majority of courts22. Good
reason seems to demand that such a judgment be
held a waiver of the lien, not on account of the re-
lations between the vendor and vendee so much as
on account of the rights of third parties who might
be led to believe by reason of such judgment that the
vendor would not assert the lien. This is especially
true where execution has been issued on the judg-
ment23. But it has been held that the filing of a claim
17. Richards v. Learning, 27 111. 431 ; 81 A. D. 240.
Elder v. Jones, 85 111. 384.
Moshier v. Meek, 80 111. 79.
18. Richards v. Learning:, 27 111. 431; 81 A. D. 240.
Baum v. Grigsby, 21 Cal. 172 ; 81 A. D. 154.
19. Rogers v. James, 33 Ark. 77.
Kelley v. Payne, 18 Ala. 371.
Cotton v. McGehee, 54 Mis*. 510.
Lindsey v. Bates, 42 Miss. 357.
White v. Williams, 1 Paige 502 ; 2 L. Ed. 721.
Bush v. Kinsley, 14 Oh. 20.
80. Trustees v. Wright, 11 111. 603.
21. Craus v. Co. Com., 87 Ind. 162.
22. Chapman v. Lee, 64 Ala. 483.
Palmer v. Harris, 100 111. 276.
Dowdy v. Blake. 50 Ark. 205 : 6 N. W. 897 : 7 A. S. R. 88.
85. Telter v. Fitts, 113 Ind. 34: 14 N. E. 707.
Clark v. Stilson, 36 Mich. 48?.
Dickason v. Eby, 73 Mo. 133
Dlcakson v. Fisher, 137 Mo. 342; 37 S. W. 1114.
LIENS 17$
for unpaid purchase-money against a decedent's es-
tate is not a waiver of a vendor's lien24. And the
issuing of an attachment on land for a debt for
which the plaintiff has a right to a vendor's lien on
the same land is not a waiver of the right to the
Ken25.
In California a vendor took a mortgage back on
the land sold but the mortgage was defective and un-
availing. He then sought to foreclose his vendor's
lien. In holding the lien waived, the court said : The
question in this case is directly presented whether in
this state a vendor's lien exists when a mortgage se-
curity is taken for the purchase-money. Decisions of
the various courts have 'been numerous on this
branch of jurisprudence, and are not harmonious.
The better rule, supported by the weight and num-
ber of authorities, is to hold the silent lien of the
vendor extinguished whenever the vendor manifests
an intention to abandon or not to look to it ; and it
is held that he does this whenever he takes other
and independent security upon the same land, or a
portion of the same land, or other land. When h«
looks to other security he loses his tacit lien"26.
When a waiver of a vendor's lien is asserted,
the burden is upon the purchaser to prove it27.
84. Selna v. Selna, 125 Cal. 357; 58 Pac. 16; 73 A. S. R. 4T.
Hays v. Horine. 12 la. 61 ; 79 A. D. 518.
25. Taylor v. Fryar, 18 Tex. Civ. App. 266 ; 44 S. W. 183.
26. Hunt v. Waterman, 12 Cal. 301.
Baum v. Grigsby, 21 Cal. 172 ; 81 A. D. 153.
Woodall v. Kelley, 85 Ala. 368; 5 So. 164; 7 A. S. R. 57.
J7. Hays v. Horine, 12 la. 61 ; 79 A. D. 518.
Crampton v. Prince. 83 Ala. 246 ; 3 So. 519 ; S A. S. R. 711.
174 THE LAW OP WAIVER.
CHAPTER 6.
STATUTE OF FRAUDS.
Section
1. IN GENERAL 175
2. HOW WAIVER OF THE STATUTE MAY OCCUR 177
3. EETFECT OP WAIVING THE STATUTE «. 181
1. IN GENERAL :--Sec. 175. The commonly
accepted and professional use of the term Statute
of Frauds embody sections 1, 2, 3, 4 and 17 of the
English Statute 29 Car. II, Cap. 3, enacted in 1677.
Under this statute the following contracts, to be
valid, must 'be in writing and signed by the party to
be charged or 'by his legally authorized agent: (1)
Those creating or conveying estates in land, both
legal and equitable, except leases for a period not
exceeding three years where the rent reserved to the
landlord amounts to two-thirds the value of the es-
tate leased; (2) the assigning, granting or surrend-
ering of any soich interests in real estate; (3) an ad-
ministrator or executor contracting to pay damages
out of his own estate ; (4) a contract to answer for
the debt, default or miscarriage of another person;
(5) an agreement made upon the consideration of
marriage; (6) a contract that is not to be performed
within a year from the making thereof; (7) con-
tracts for the sale of goods, wares and merchandise
for more than ten pounds sterling. These provi-
sions, or at least their substance, have 'been enacted
as the law of nearly every state in the union, with
additions here and there, following the same policy
and purpose as the English Statute.
Sec. 176. The statute is a complete defense to
an action on a parol contract required by it to be in
STATUTE OF FRAUDS 17'5l
|
•writing. But to constitute such defense the statute
must be used properly and at the proper time. For,
like many other defenses, it is not self-operative or
'automatic, and like a shield is efficacious only when
put in the front. A party entitled to the benefit of
the statute may, if he see fit, forego its benefits. And
he may by his conduct and without any apparent in-
tention to so do, waive those benefits — such inten-
tion, however, being imputed to him from his con-
duct. And when once waived, the statute as to him
becomes powerless ever after.
2. HOW WAIVER OF THE STATUTE MAY
OCCUR: — 'Sec. 177. In an action on a contract re-
quired by the statute to be written, it is not neces-
sary for the plaintiff's pleadings to show that the
contract was a written one28. This is a matter of
proof and a matter to be invoked only by the defend-
ant, for it is a personal right 'belonging to the latter
to rely on the protection of the statute, and if he so
28. Strouse v. Etting, 110 Ala. 132 ; 20 So. 123.
McMenomy v. Talbot, 84 Cal. 279 ; 23 Pac. 1099.
Ruth v. Smith. 29 Colo. 154 ; 68 Pac. 278.
Cannon v. Windsor, 1 Hust. 143 (Del.).
Anderson v. Hilton, 121 Ga. 688.
Speyer v. Desjardinis, 144 111. 641; 32 N. E. 283.
Hamilton v. Thirston, 93 Md. 213 ; 48 Atl. 709.
Kroll v. Diamond M. Co.. 106 Mich. 127 ; 63 N. W. 981.
Schurtz v. Lieber, 79 Miss. 257 ; 30 So. 649.
Phillips v. Hardenburg, 181 Mo. 463 ; 80 S. W. 891.
Schmid v. Schmid, 37 Neb. 629 ; 56 N. W. 207.
Walker v. Richards, 41 N. H. 388.
Whitehead v. Burgess, 61 N. J. L. 75 ; 38 Atl. 802,
Etting v. Vanderlyn, 4 Johns. 237.
Groce v. Jenkins, 28 S. Car. 172 ; 6 S. E. 352.
Townsend v. Sharp, 2 Tenn. 192.
Gonzales v. Chartier, 63 Tex. 36.
Nat'l. Bank v. Kinner, 1 Utah 100.
Hotchkiss v. Lodd. 36 Vt. 593.
Skinker v. Armstrong, 86 Va. 1011; 11 S. E. 977.
176 THE LAW OF WAIVES
desire he may remain silent as to the statute, in
which event he will be held to have waived it. The
law presumes that its requirements have been ful-
filled by parties in making their contracts, and a
plaintiff is not forced to do more than to simply
declare upon his contract ; but it is incumbent upon
the defendant to plead and prove that his contract
with the plaintiff was not in accordance with the re-
quirements of the statute29, unless the pleadings of
the plaintiff do in fact show on their face that the
contract does not fulfill the requirements, in which
event the defendant may defeat the action by de-
murrer30.
Sec. 178. Where the contract sued on does not
appear from the face of the complaint to be within
the statute of frauds, the defendant can take ad-
vantage of the statute only by asserting it in his
answer, and unless he specially plead it he will be
deemed to have waived its protection31 . In an action
29. Osborn v. Endicott, 6 Cal. 149.
Broder v. Conklin, 77 Cal. 33 ; 19 Pac. 611.
Burt v. Williams, 28 Cal. 632.
80. Beadle v. Seat. 102 Ala. 532 ; 6 So. 243.
Barr v. O'Donnell, 76 Cal. 469; 18 Pac. 429.
Tynon v. Despaln, 22 Colo. 240 ; 43 Pac. 1039.
Goldstein v. Nathan, 57 111. App. 289.
Wiseman v. Thompson (la.) ; 103 N. W. 346.
Smith v. Theobald, 86 Ky. 141; 9 Ky. L. R. 449; 6 8. W. 394.
Lawrence v. Chase, 54 Me. 196.
Roth v. George, 118 Mo. 556; 24 S. W. 176.
Garnner v. Stubblefleld, 5 Tex. 552.
Dry Goods Co. v. Box, 13 Utah 494 ; 45 Pac. 689.
81. Tynon v. Despaln, 22 Colo. 240 ; 43 Pac. 1039.
Seymour v. Mitchell, 2 Root 145 (Conn.).
Johnson v. Latlmer, 71 Ga. 470.
Tift v. Wright, 113 Ga. 681 ; 39 S. E. 508.
Bowman v. Alnslee, 1 Idaho 644.
Hogan v. Easterday, 58 111. App. 45.
Bragg v. Olson, 128 111. 540 ; 21 N. E. 619.
STATUTE OF FRAUDS 177
on a contract required by the statute to 'be in writ-
ing, however, it is incumbent upon plaintiff to prove
the contract by written evidence unless the defend-
ant has in some way waived it 33. The defense of the
statute is waived unless positively set up and relied
upon, but it has been said that it may be taken ad-
vantage of under the general issue34.
Sec. 179. The defense of the statute of frauds
is a personal one to the promissor, and he may take
advantage of its protection or not, the choice rest-
ing 'solely with him35. He may admit the making of
the contract sued on and yet not forego his right to
object to it as failing to comply with the statute3*.
But where the defendant admits the making of the
oral contract sued on, he must plead the statute or
Miller v. Wilson, 146 HI. 623 ; 34 N. E. 1111.
Maybee v. Moore, 90 Mo. 340 ; 2 S. W. 471.
Farrar v. Patton, 20 Mo. 81.
Fee v. Sharkey, 59 N. J. Eq. 284 ; 44 Atl. 673.
Barrett v. Johnson, 77 Hun 527 ; 60 N. Y. St. 271.
Mathews v. Mathews, 154 N. T. 288 ; 48 N. E. 631.
Woods v. Dille, 11 Oh. 45.5.
Watson v. Erb, 33 Oh. St. 35.
Houser v. Lament, 55 Pa. 311.
Barnes v. Coal Co., 101 Tenn. 354 ; 47 S. W. 493.
League v. Davis, 53 Tex. 9.
Adams v. Patrick, 30 Vt. 516.
Liversey v. Liversey, 30 Ind. 398.
Lawrence v. Chase, 54 Me. 196.
Llvlnstone v. Murphy, 187 Mass. 315.
82 Eaves v. Vial, 98 Va. 135; 34 S. E. 978.
Guynn v. McCauley, 32 Ark. 97.
83. Wynn v. Garland, 19 Ark. 34.
Douglass v. Snow, 77 Me. 91.
84. Young v. Ledford, 99 Mo. App. 565 ; 74 S. W. 448.
Beckmann v. Mepham, 97 Mo. App. 161 ; 70 S. W. 1094.
86. Tregea v. Mills, 11 Wyo. 438; 72 Pac. 578; and 73 Pac. »0».
Armour & Co. v. Ross, 110 Ga. 413 ; 35 S. E. 787.
McCoy v. Williams, 1 Glim. (HI.) 584.
16. Crockett v. Green, 3 Del. Ch. 466.
Hollingshead v. McKenzie, 8 Ga. 467.
Douglas v. Bunn, 110 Ga. 159 ; 35 S. E. 339.
178 THE LAW OF WAIVER
lie will not be allowed to avail himself of its benefits
or to question the proceeding on that ground37. On
the other hand, if the agreement itself be denied, the
statute may be insisted upon as a bar without speci-
ally pleading it38. Such denial brings in issue the
making of the contract, and under the issue thus
made it devolves upon the plaintiff to show not only
the making of a contract but he must further show
the contract to be legal in every respect or his action
must fail. The action will not thus fall of its own
weight, however. The defendant must be diligent
in compassing its downfall. He must make his ob-
jections at the proper time ; for while it is held that
a denial of the making of the contract without say-
ing anything about the statute of frauds is not a
waiver of the benefit of the statute39, yet objections
to the contract must be made at the time it is offered
in evidence, and it is held that a motion later to
strike it out is of no avail40. And as a failure of
the defendant to object to obnoxious evidence is a
waiver of the statute41, the oral contract cannot be
called into question for the first time in a request
87. Abba v. Smyth, 21 Utah 109 ; 59 Pac. 756.
Wilson v. Sullivan, 17 Utah 341 ; 53 Pac. 994.
Christiansen v. Aldrich, 30 Mont. 446 ; 76 Pac. lOOf.
Dean v. Dean, 9 N. J. Eq. 425.
2 Story's Eq. Jur. 753, 757.
It. Ontario Bank v. Root, Paige 478.
Battell v. Matot, 5 Atl. 479 (Vt.).
Holt v. Brown, 19 N. W. 235 (la.).
Gordon v. Reynolds, 114 111. 118 ; 28 N. B. 456.
Randolph v. Frick, 5 Mo. App. 279.
Tift v. Wight, 113 Ga. 681 ; 39 S. E. 503.
S9. Feeney v. Howard, 79 Cal. 525 ; 21 Pac. 984.
Hackett v. Watts, 138 Mo. 552 ; 40 S. W. 11*.
Dunn v. McCllntock, 64 Mo. App. 193.
49. Livermore, et al. v. Stine, 43 Cal. 274.
41. Sartwell v. Sowles, 72 Vt. 270; 48 Atl. 11.
Holt v. Howard. 77 Vt. 49.
STATUTE OF FBATTDS 179
for findings42. A decree profconfesso prevents the
operation of the statute43; and failure to call the
court's attention to pleas in reliance on the statute
until after verdict is a waiver of any right to insist
upon it44. As the -benefit of the statute is waived
where parol evidence of the contract is admitted
without objection45, and as the statute is an optional
defense, a defendant reiving upon it must either
plead the same or object to the introduction of tes-
timony as to the contract ; and he cannot permit the
introduction of such evidence without objection and
at its close demur thereto on the ground of the stat-
ute46. These principles are true even where the stat-
ute is specially pleaded but evidence of the oral con-
tract is admitted without objection47. And it is
again said that unless the statute is in some way set
up as a defense or called to the attention of the court
it is deemed to have been waived48. If a defendant
attempt to show by his evidence that no such con-
tract exists as alleged by the plaintiff, he cannot
raise the question of the statute of frauds for the
first time by asking instructions49. But it is said in
Nebraska that "The failure to object on a trial to
the introduction of evidence of a parol agreement
42. Porter v. Wormser, et al., 94 N. T. 431.
43. Angel v. Simpson, 85 Ala. 53 ; 5 So. 758.
44. Neider v. Fredrich, 69 111. App. 623.
45. Nunez v. Morgan, 19 Pac. 753 (Cal.).
Simis v. Wissel, 10 App. Dlv. 323 ; 41 N. T. Supp. 1014.
Brown v. Mfg. Co., 46 S. Car. 415; 24 S. E. 191.
Cosand v. Bunker, 2 S. Dak. 294 ; 50 N. W. 84.
46. Nenvirth v. Engler, 83 Mo. App. 420.
Van Idom v. Nelson, 60 Mo. App. 523.
47. Miller v. Harper, 63 Mo. App. 293.
Pike v. Pike, 69 Vt. 535.
48. Leag-ue, et al. v. Davis, S3 Tex. 9.
49. Royal Co. v. G. Grocer Co., 90 Mo. App. it.
180
to re-convey real estate will not amount, under the
practice of this state, to a waiver of the right to in-
voke the statute of frauds as to such an agreement
when the statute has 'been properly pleaded as a de-
fense"50. And the statute is not waived by an ad-
mission of the making of the contract and an alle-
gation that it was verbal and void under the stat-
ute81. So, too, it is not a waiver for the defendant
to fail to object to evidence of the contract prior to
evidence that the contract is within the exception of
the statute52.
iSec. 180. A party cannot seek to avoid liability
on one ground and then switch positions. And where
it was admitted in an action that the contract sued
on was made, but a defense other than failure to
comply with the statute of frauds was relied on, the
benefit of the statute or the right to assert it was
thereby waived53. So, after a plea of the statute
had been overruled and an answer was thereupon
filed, the defense of the statute was held to have
"been waived54. Where the defendant in his answer
admits substantially the contract set out in the peti-
tion, but alleges that the plaintiff has violated its
provisions, and there is no plea of the statute, it
will be held waived55. In an action for commissions
for sale of real estate, defendant based his refusal
to pay on the fact that he had withdrawn his prop-
erty from the market ; he was not permitted to after-
60. Thomas v. Thomas, et al., 67 N. W. 182 (Neb.).
61. Jamison v. Hyde, 141 Cal. 109; 74 Pac. 695.
62. Benedict v. Bird, 103 la. 612; 72 N. W. 768.
53. Christiansen v. Aldrlch. et al.. 30 Mont. 446; 76 Pac. 100T.
84. Keatts v. Rector. 1 Ark. 391.
16. O^nor v. Hinp^n. 19 N«b. 472: 27 N. W. 44?,.
Davis, et al. v. Greenwood, et al., 96 N. W. 526 (Neb.).
STATUTE OF FRAUDS 181
ward change positions and allege that the contract
of employment was void for non-compliance with
the statute56. In a suit for the specific performance
of a contract for the sale of land, the defendant will
be held to have waived the defense of the statute
of frauds unless he denies the sale or pleads the
statute57. An oral agreement for the sale of land
should foe enforced where it is shown to 'be not ma-
terially different from that alleged and that the stat-
ute is not relied on58. The protection of the statute
is waived where it might have been set up in a previ-
ous suit between the same parties but was not59.
But it cannot be waived by any act of an adminis-
trator or executor to the detriment of the heirs or
devisees60.
3. EFFECT OF WAIVING THE STAT-
UTE :-^Sec. 181. The failure to claim the benefit
of the statute of frauds is permanent, and an op-
portunity to claim its protection once gone, returns
no more. So, a party having failed to claim its 'bene-
fit in an original suit, cannot set up the statute on a
cross-bill61. It is too late to raise the question of
the statute of frauds for the first time in a motion
for a new trial, or on error or appeal. Unless
raised at the time of trial, it is waived62. When
66. Mooney v. Elder, 56 N. T. 238.
67. Talbot v. Bowen, 1 A. K. Marshall 436 ; 10 A. D. 747.
Esway v. Gorton, 18 111. 483.
58. Baker v. Hollobaugh, 15 Ark. 322.
69. Foulke v. Thallmessinger, 1 App. Div. 598 ; 73 N. Y. St. R. 194.
60. Matter of O'Rourke, 12 Misc. 248; 68 N. T. St. R. 1.
61. Battell v. Matot, 58 Vt. 271 ; 5 Atl. 479.
•2. Hogan v. Easterday, 58 Til. App. 46.
Finucan v. Kendlg, 109 HI. 198.
Gordon v. Reynolds?, 114 111. 118 ; 28 N. B. 456.
182 THE LAW OF WAIVER
parol evidence of a contract within the statute of
frauds is introduced without objection, it cannot
afterwards be objected to on appeal63, and the same
is true where the statute is waived in any manner in
the trial court whether by failure to plead or other-
wise64. So, where a defendant waived the protec-
tion of the statute at the trial, it was not permitted
him to assert it at a second trial when the case had
been remanded by the Supreme Court65.
So strict are the rules of practice requiring a de-
fendant to take proper steps to avail himself of the
benefit of the statute or holding him to a waiver of
it, that it is said that it matters not how obnoxious
to the statute a contract may be, it will be enforced
if the statute has been waived66.
63. Marr v. Ry. Co., 121 la. 117; 96 N. W. 71«.
64. Boston v. Nichols, 47 111. 353.
Neagle v. Kelly, 146 111. 460 ; 34 N. E. 947.
Neuvirth v. Angler, 83 Mo. App. 420.
Hawley v. Dawson, 16 Oreg. 347 ; 18 Pac. 592.
Prior v. Sanborn Co., 12 S. Dak. 86 ; 80 N. W. 169.
Holt v. Brown Co., 63 la. 319 ; 19 N. W. 239.
65. Barrett v. McAllister, 35 W. Va. 103; 12 S. B. 110«.
66. Espalla v. Wilson, 86 Ala. 487 ; 5 So. 867.
Talbot v. Bowen, 1 A. K. Marshall 436 (Ky.).
Newton v. Swazey, 8 N. H. 13.
Woods v. Dllle, 11 Oh. St. 455.
Albert v. Wlnn, 5 Md. 66.
Email v. Owlngs, 1 Md. Ch. 36a.
EXEMPTIONS 183
CHAPTER 7.
EXEMPTIONS.
Section
1. WAIVER IN GENERAL T 182
2. BY CONCURRENT AGREEMENT 18 J
3. BY SUBSEQUENT CON/DUCT 185
4. HOMESTEAD EXEMPTIONS 187
1. WAIVER IN GENEEAL:— Sec. 182. Cer-
tain considerations have made it questionable wheth-
er the right to exemptions can be waived. The stat-
utes providing for exemptions, while giving them to
the head of a family, really contemplate the creation
of a trust in which he is to hold the property so pro-
tected for the support of his family, for the benefit
of those depending upon him more than for his own
good. And there are instances in which the power
to waive the right to exemptions is denied without
the concurrence of those for whose real protection
the exemption exists67. Generally, however, it may
be said that the right to exemptions is one which may
be waived68, unless, of course, the state constitution
or some statute prevent this. As the husband, being
the head of the family, is entitled to manage the
property, he also has the right to waive the benefit
of exemption laws passed for the protection of his
family69 ; in fact he is generally the only one who has
the right to waive exemptions, although in Alabama
the constitution denies him the right unless he is
joined in such waiver by his wife if the exemption
relate to realty. There are certain principles in the
C7. Hen v. Beates, 7S Pa. St. 429.
68. Marchlldon v. O'Hara. 52 Mo. App. 523.
69. BeU v. Brenner, 106 Mien. 87; 63 N. W. 970.
THE LAW OF WAIVES
adjudications that would seem to be at variance with
the a'bove outlines, and a distinction exists 'between
cases where a waiver is attempted 'by concurrent
agreement and those where a waiver is sought to be
induced from conduct subsequent to the agreement.
2. BY CONCURRENT AGREEMENT :— Sec.
183. The general rule is that one entitled to stat-
utory exemptions cannot waive the benefit of exemp-
tion laws by an agreement contemporaneous with
the creation of his debt70. This is based upon con-
siderations of public policy and is an attempt by law
to protect a debtor, and more especially those de-
pending upon him, against the exigencies of unto-
ward circumstances and the results of his own im-
providence. Our common experience demonstrates
that men are usually sanguine in creating a debt,
and most debtors are provident to have planned out
in advance the channels of revenue from which funds
are to be drawn to meet the debt at its maturity; a
few disregard the approach of pay-day and think
only of the immediate benefits to 'be derived as a re-
sult of the debt. But the judgments of men are fall-
ible, plans many times remain unexecuted, and un-
toward events frequently bring misfortune to the
door of the provident as well as the shiftless, and
however willing one may be, either through inten-
tion or through carelessness, to relinquish his rights
to his creditor in order to assure him of an intention
70. Mills v. Bennett, 94 Tenn. 652 ; 30 S. W. 748 ; 45 A. S. R. 763.
Phelps v. Phelps, 72 111. 545 ; 22 A. R. 149.
Carter v. Carter, 20 Fla. 558; 51 A. R. 618.
Moran v. Clark, 30 W. Va. 358; 4 S. E. 303; 8 A. S. R. 66.
Kneettle v. Newcomb, 22 N. T. 249 ; 78 A. D. 186.
Burke v. Flnley, 50 Kans. 424; 31 Pac. 1065; 34 A. S. R. 132.
Walllngsford v. Bennett, 1 Mackey 303.
EXEMPTIONS 185
to pay, the law often must protect him from the
rapaciousness of a too-greedy or too-exacting credi-
tor. It is for such reasons that courts hold prospec-
tive agreements to waive the 'benefit of exemption
laws against public policy and, therefore, void.
Sec. 184. These principles, however, should
not obtain unless the debtor be the head of a family
or have some one depending upon his latbors for sup-
port. A single man, capable of contracting, should
have the privilege of foregoing the benefit of ex-
emption laws if he so desires, since his act can effect
no one but himself71, although such power has been
denied him72. But the rule should not be extended
farther than that. The law intends to protect the
poor and needy, the innocent and helpless, and as
has been noted above and declared by a Kentucky
court, "The legislature certainly intended by the en-
actment of such laws to provide more for the de-
pendent family of the debtor than for the debtor
himself"73. And in speaking of such prospective
waivers, a North Carolina court said, "There is no
description of property, no agreement to sell or
make title to anything, so that specific performance
is out of the question. The agreement is to waive a
right in contravention of state policy, which agree-
ment this court cannot undertake to enforce"74.
The provision of a note is void which expressly
waives "the benefit of all laws exempting real or
personal property from levy and sale"75. A waiver
71. Powell v. Dalley, 163 111. 646 ; 46 N. E. 414.
72. Mills v. Bennett, 94 Tenn. 652; 30 S. W. 748; 45 A. S. R. 763.
73. Moxley v. Ragan, 10 Bush 158.
74. Branch v. Tomlinson, 77 N. Car. 388.
75. Recht v. Kelly, 82 111. 147; 25 A. R. 301.
186 THE LAW OF WAIVEB
of exemptions contained in a confession of judgment
is also void76. But an agreement, concurrent with
the creation of a debt, to pay the debt out of the pro-
ceeds of life insurance which is made exempt by stat-
ute, has been held a waiver of the right to such ex-
emptions77.
An opposing doctrine to the above has been held.
In Pennsylvania it has been held that such agree-
ments may be enforced and that the waiver is valid78.
But this is not in accord with the trend of judicial
thinking nor the weight of authority.
3. BY SUBSEQUENT CONDUCT :— Sec 185.
While the law throws about a debtor as complete a
blanket of protection of his exempt property as is
consistent with its duties and obligations to others,
he cannot always be shielded from the results of his
own inconsistent conduct. He may so conduct him-
self after the maturity of his debt as to persuade
his creditor that a right to claim exemptions will
not be taken advantage of. Thus, if personal prop-
erty by law made exempt from execution is not
claimed within a reasonable time after it has been
seized, the right to hold it as exempt is waived79.
And a pledge of personal property is an implied
waiver of a right to claim it as exempt80. So, a fail-
Maxwell v. Reed, 7 Wis. 583.
Fejavary v. Broesch, 62 la. 89 ; 2 N. W. 968.
Crawford v. Lockwood, 9 How. Pr. 547.
Troutman v. Gowing, 16 la. 415.
76. Rutt v. Howell, 50 la. 537.
77. Murdy v. Skyles, 101 la. 549 ; 70 N. W. 714 ; 68 A. S. R. 411.
78. Shelley's Appeal, 36 Pa. St. 373.
Case 17. Dunmore, 23 Pa. St. 93.
Johnston's Appeal, 25 Pa. St. 116.
T9. Stanton v. French, 83 Cal. 194 ; 23 Pac. 355.
80. Hawley v. Hampton, 160 Pa. St. 18 ; 28 All. 477.
EXEMPTIONS 187
lire to file a schedule of exemptions as provided by
statute is a waiver of the exemption81. The abandon-
ment of a business is a waiver of a statutory right
to exemptions to one who conducts a business82.
Where a levy is made on exempt property and a
claim for exemptions is not made before sale, the
exemption is lost whether or not the debtor knew of
the sale83. An execution debtor voluntarily surrend-
ering property levied upon, without claiming his
right to exemptions, waives the right to such claim84.
And it is also a waiver to convey the exempt prop-
erty to another, especially with fraudulent intent85,
although the opposite of this is maintained86. So
the intermingling of the proceeds of the sale of
property some of which is exempt and some not, is
a waiver of the right to claim an exemption87. And
it is a waiver to fail to appear at the time and place
fixed for setting apart property claimed to be ex-
empt88. And on removing property to an auction
room to be sold, a party waives the right to claim
such property as exempt89. Whenever a statute
prescribes a mode to be followed in asserting a claim
to exemptions, this mode must be pursued or the
81. Chambers v. Perry, 47 Ark. 400 ; 1 S. W. 700.
82. Betz v. Brenner, 106 Mich. 87; 63 N. W. 970.
83. Bell v. Davis, 42 Ala. 46.
84. Richards v. Haines, 30 la. 574.
86. Wyman v. Gay, 60 A. S. R. 238 (Me.).
Mandlove v. Burton, 1 Ind. 39.
Bonn v. Weeks, 50 111. App. 236.
86. King v. Harter, 70 Tex. 579 ; 8 S. W. SOS.
Narnburg v. Hyatt, 24 Fed. 898.
Duvall v. Rollins, 71 N. Car. 218.
87. Rasco v. Sheet, 8 Ky. L. R. 703.
88. Butt v. Green, 29 Oh. St. 667.
89. Kennedy v. Baker, 4 Chand. 19 (Wis.).
188 THE LAW OF WAIVES
right will be deemed waived90. A claim to exemp-
tions may be lost by laches, as where a debtor de-
layed four months after levy before making a
claim91. And entering into an agreement for the
sale of exempt property taken under an attachment
is a waiver of the exemption92. So if the debtor, at
the time of the levy on his property, disclaims own-
ing it, his right to claim it as exempt is lost93, al-
though this has been denied94. Where partners de-
liver property into the hands of contractors who are
to do work upon it, they thereby waive their right
to claim their individual exemptions95.
Sec. 186. But as exemption laws are always to
be construed as favorably as possible to the debtor,
it is not every act of his in dealing with exempt
property that will warrant courts in holding him to
have waived his right to claim his exemptions. Thus,
failure to assert a claim until an attempt to sell the
property is not a waiver of the right to the claim96.
Nor is it necessary to make the claim before the levy
of the process97. And after the levy the giving of a
re-delivery or forth-coming bond will not take away
the right to claim the property as exempt98. This
90. State v. Boulden, 57 Md. 314.
Wagner v. Harden, 13 Ind. App. 571; 41 N. E. 1067.
Stanton v. French, 83 Cal. 194 ; 23 Pac. 355.
Hammersmith r. Avery, 18 Nev. 225 ; 2 Pac. 55.
Behymer v. Ccok, 5 Colo. 395.
Buzzell v. Handy, 58 N. H. 331.
81. Borland v. O'Neal, 22 Cal. 504.
92. Dow v. Cheney, 103 Mass. 181.
93. Gilleland v. Rhoads, 34 Pa. St. 187.
Miles v. State, 73 Md. 398; 21 Atl. 51.
94. State v. Carson, 27 Neb. 501 ; 43 N. W. 361 ; 20 A. S. R. 681.
95. Rogers v. Raynor, 102 Mich. 473; 60 N. W. 980.
»6. McMichael v. Grady, 34 Fla. 219 ; 15 So. 765.
97. Alley v. Daniel, 75 Ala. 403.
98. Atkinson v. Gatcher, 23 Ark. 101.
Desmond v. State, IB Neb. 438; 19 N. W. 644.
EXEMPTIONS
is true because, for one reason, it is the rule that
the claim may be made at any time before the sale" ;
and it has been held that the right does not cease
even at the time of sale. A debtor who retains prop-
erty as bailee for the sheriff who has levied upon it,
or who directly or indirectly buys it at execution
sale, does not, in either case, waive the right to claim
the same property as exempt100. And though a
party entitled to exemptions is present at the time
of sale of exempt property and receives the surplus
from the sheriff, he does not thereby waive his right
to exemptions1. So where a debtor fails to elect as
to what property he will claim, he does not thereby
lose his right to exemptions2. And the giving up of
property to the sheriff is not a waiver3, although it
has been held otherwise if the debtor directs the levy
to be made on specific property4. To first traverse
an attachment on other grounds than for exemptions
is no waiver of a claim of the same5. And where
partners traverse an attachment of partnership
goods it is not a waiver of their individual ex-
emptions in such goods6. Merely receipting an of-
ficer for goods levied upon does not preclude the
right to claim them as exempt7. And an agreement
to turn over exempt property to a creditor in pay-
ment of a debt was held no waiver of the right8.
99. Daniels v. Hamilton, 52 Ala. 105.
100. Parham v. McMurray, 32 Ark. 261.
1. Phillips v. Taber, 83 Ga. 565.
2. Colson v. Wilson, 88 Me. 416.
8. Eltzroth v. Webster, 15 Ind. 21 ; 77 A. D. 78.
4. People v. Johnson, 4 111. App. 346.
6. Bassett v. Inman, 7 Colo. 270; 3 Pac. 383.
6. Ladewif? v. Williams. 87 Wis. 615: 58 N. W. 1103.
7. Vanderhorst v. Bacon, 38 Mich. 669; 31 A. R. 328.
5. Washburn v. OoodheacLt 88 ill. 229.
190 THE LAW OF WAIVER
4. HOMESTEAD EXEMPTIONS :— Sec. 187.
An owner does not waive his homestead exemption
by failing to take any step or to assert his right ; he
need not make any claim9, or demand10 for it. This
must, of course, 'be dependent upon whether a stat-
ute affects the subject of not; thus, under the Mis-
souri statute it was held to be immaterial whether
the homesteader made any claim11. And the right is
not lost by neglecting to have the homestead set over
to the debtor by the officer levying the execution12.
But there are instances to the contrary. Thus, in
Nebraska it is said that the homestead right is a
purely personal one which the owner may at any
time waive or renounce; and it may be lost if the
owner does not, at the time a levy is made upon it,
notify the officer of what he regards as his home-
stead13.
Sec. 188. But the considerations that obtain as
to exemptions of personal property are more forci-
ble in the case of a homestead. While running di-
rectly in favor of the head of a family, the reserva-
tion the law makes of a homestead is for the 'benefit
of those dependent upon him. It is meant that they
ehall have a haven into which the tempests of ad-
versity or improvidence or ill-advised speculation
may not penetrate, that they shall have a safeguard
against the power of the husband or father to de-
*. Wiggins v. Chance, 54 111. 175.
Imhoff v. Lipe, 162 111. 282; 44 N. E. 493.
19. Gray v. Putnam, 51 S. Car. 97; 28 S. E. 14f.
11. Vogler v. Montgomery, 54 Mo. 584.
12. Barney v. Leeds, 51 N. H. 253.
See: Wright v. Grabf elder, 74 Ala. 4C«.
Llvermore v. Boutelle. 11 Gray 217.
It. Rector v. Rotton, S Neb. 171.
EXEMPTIONS 191
prive them of this shelter, this protection from be-
ing forced from under their roof by a too-grasping
creditor who might be given such authority through
the over-eagerness of the debtor to create the obli-
gation. And if the head of the family have the pow-
er to waive or renounce such right of exemptions, the
protection sought to be thrown around helpless ones
is most incomplete. In some states, however, where
the right may be waived, the wife may assert it if
the husband fail to do so14.
Sec. 189. Most states provide by statute a
means of disposing of the homestead and renouncing
the benefit of it as an exemption; and these provi-
sions must be followed to the letter or creditors ob-
tain no rights therein. For, as has been repeatedly
said here and elsewhere, the homestead right is for
the benefit of the wife and children, a right "of
which she and they cannot be deprived in any other
way than that prescribed in the act itself. A pro-
ceeding by ejectment to be followed by a writ of pos-
session accomplishes what the act designs shall not
be accomplished by a levy and forced sale; and the
injury to her is equally as great, and the object of
the act completely defeated. The separate property
of the wife which she may own in fee cannot be taken
away from her without her free consent to be mani-
fested as the statute directs ; nor can she be deprived
of dower in her husband's estate except by her own
consent. No judgment or decree of court, no deed to
which she "is not a willing party can deprive her of
this right; and this right of homestead is equally
inviolate in spite of creditors or husband. Nor does
14. Goldman v. Clark, 1 Nev. (07.
192 THE LAW OF WAIVER
the law require her or her husband to do any act to
secure this right. They are both passive while the
law silently, but effectively throws around them its
protecting shield"15. Many other courts sustain
these arguments and principles16.
16. Pardee v. Llndley, 31 111. 174 ; 83 A. D. 219.
Citing: Patterson v. Kreig, 29 111. 518.
16. Cummings v. Long, 16 la. 41; 85 A. D. 502.
Ring v. Burt, 17 Mich. 465.
Abbott v. Cromartie, 72 N. Car. 292 ; 21 A. R. 46 T.
Ferguson v. Kumber, 25 Minn. 183.
Wing v. Hayden, 10 Bush '276.
Morris v. Ward, 5 Kans. 239.
Myers v. Ford, 22 Wis. 139.
McCracken v. Adler, 98 N. Car. 400; 4 S. E. 188; 2 A. S. B. 140.
Watts v. Gallagher, 97 Cal. 47; 31 Pac. 62«.
Rodgers v. Baker, 96 Ga. 800 ; 22 S. E. 585.
Katliff v. Graves, 132 Mo. 76 ; 38 S. W. 4EO.
PEIVILEGED COMMUNICATIONS
CHAPTER 8.
PRIVILEGED OOMMUNICATEONB.
Sectkm
1. IN GCEINiERAIj 190
2. ATTORNEY AND CLJtENT 191
ft. PHYSICIAN AND PATIENT —
A. Who May Waive Privilege . 196
B. What Amounts to Waiver 197
4. HUSBAND AND WIFE 198
1. IN GENERAL :— Sec. 190. The law has
placed a blanket of exclusion about certain classes
of evidence which public policy does not permit to
be removed without the consent of him who is en-
titled to its protection. This apparent contraven-
tion of other rules of evidence that require all the
facts pertaining to a case to be disclosed is founded
on the proposition that more harm and less justice
would result from a disclosure of what is termed
a privileged communication than from withholding
it. It is not proposed here to enter into a discussion
of what is a privileged communication, but to show
that the right to have the seal of the law remain on
such matters is a personal right which may be
waived 'by him who is entitled to assert it, and to
ascertain what will be sufficient to constitute such
.waiver.
2. ATTOENEY AND CLIENT:— Sec 191. By
tlie common law, all matters communicated to and
received by an attorney, counsellor or solicitor in his
professional capacity are privileged and may not be
194 THE LAW OF WAIVER
disclosed by him without the consent of his client17.
This has been embodied in statutory provisions in
most states. But the privilege of secrecy as to such
matters is that belonging to the client and he may
waive it if he choose18, although the attorney cannot.
The privilege once being waived by the client, how-
ever, the attorney is thereby made a competent wit-
ness and may be compelled to testify19. A waiver
may also be made by personal representative, ex-
ecutor or administrator of the client20, but not by
his assignee21, nor his successor in a representative
capacity22; but if two or more are entitled to the
same privilege, the consent of each is necessary be-
fore the matter can be testified to23, and one partner
cannot waive the privilege for the firm24. At all
events, the waiver must distinctly appear either by
17. Higbee v. Dresser, 103 Mass. 523.
MoClellan v. Longfellow, 32 Me. 494; 54 A. D. 599.
Andrews v. Slmms, 33 Ark. 771.
Maxham v. Place, 46 Vt. 434.
Root v. Wright, 84 N. Y. 72; 38 A. R. 495.
Gallagher v. Williamson, 23 Cal. 331; 83 A. D. 114.
18. Passmore v. Passmore's Est., 50 Mich. 626; 16 N. W. 170.
45 A. S.R.
Hunt v. Blackburn, 128 U. S. 464.
Sleeper v. Abbott, 60 N. H. 162.
Rowland v. Plummer, 50 Ala. 182.
Tays v. Carr, 37 Kans. 141 ; 14 Pac. 456.
19. Benjamin v. Coventry, 19 Wend. 353.
Chase's Case, 1 Bland 206 ; 17 A. D. 277.
20. Brooks v. Holden, 175 Mass. 137; 55 N. E. 802.
Ex parte, Gfeller, 178 Mo. 248 ; 77 S. W. 552.
21. Bowman v. Norton, 5 Car. & P. 177 ; 24 E. C. L. 2«5.
22. Herman v. Schlesinger, 114 WJs. 382; 90 N. W. 460; 91 A. S.
R. 922.
23. Michael v. Foil, 100 N. Car. 178; 6 S. E. 264; 6 A. S. R. 577.
Herman v. Schlesinger, 114 Wis. 382; 90 N. W. 460; 91 A. S. R.
922.
Bank of Utica v. Merserean, 3 Barb. Ch. 528; 49 A. D. 189.
Seip's Est., 163 Pa. St. 423; 30 Atl. 226; 43 A. S. R. 803.
24. People v. Barker, 56 111. 299.
PRIVILEGED COMMUNICATIONS 195
express provision or expression of the client, or by
necessary implication from his conduct25, and a
court has no power to supply a waiver of the privi-
lege of one who died without making it26.
Sec. 192. Many different acts and words have
been held to constitute a waiver of this privilege, and
the circumstances under which it is waived are var-
ious. The waiver may 'be by express words of the
client or it may be implied from his conduct. An
express waiver is made where the party states in
person or by his attorney that he does not claim the
privilege27, although if made by the attorney, the
client must consent thereto. There can, of course,
be no controversy about this. But more difficulty
has arisen in determining what constitutes an im-
plied waiver. It is said that the bar is lifted when
the client requests the attorney to subscribe as a
witness to an instrument which he has caused the
attorney to prepare, such as a will28, mortgage29 or
agreement30, and that the attorney may be compelled
to testify as to facts concerning the execution of the
instrument, it being said, however, that the testi-
25. State v. James, 34 S. Car. 58; 12 S. E. 657.
Tate v. Tate's Ex'rs., 75 Va. 533.
26. Morris v. Caine's Ex., 39 La. Ann. 726 ; 2 So. 418.
Clay v. Williams, 2 Munf. 105; 5 A. D. 453.
27. Brltton v. Lorenz, 3 Daly 23 (N. T.).
28. In re Coleman, 111 N Y. 220; 19 N. E. 71.
Blackburn v. Crawford's Lessee, 3 Wall. 175 (TT. S.).
McMaster v. Scriven, 85 Wis. 162 ; 55 N. W. 149 ; 39 A. S. R. 828.
Doherty v. O'Callaghan, 157 Mass. 90; 31 N. E. 726; 34 A. S.
R. 258; 17 L. R. A. 188.
Denning v. Butcher, 91 la. 434 ; 59 N. W. 69.
Pence v. Waugh, 135 Ind. 143 ; 34 N. E. 860.
29. Monaghan Co. v. Dickson, 39 S. Car. 146; 17 N. E. 696; 39
A. S. R. 704.
30. Herman v. Schlesinger, 114 Wis. 382; 90 N. W. 460; 91 A. S.
R. 922.
196 THE LAW OF WAIVEB
mony must be limited to matters concerning the ex-
ecution of the instrument and not relate to those
occurring during the course of its preparation. But
this latter is not the universal holding. For in-
stance, it is announced that even where a testator
requests that matters communicated to his attorney
during the preparation of the former's will be held
confidential, this privilege is waived by his request-
ing the attorney to subscribe the will as a witness31 ;
and it is said further that a client signing his will in
the presence of witnesses waives the privilege as to
his attorney's testimony concerning the execution
and contents of the will32. The better rule undoubt-
edly is that a party calling his attorney as a sub-
scribing witness to his will or other instrument pre-
pared by the attorney at the client's request, waives
no right to insist on his privilege as to communica-
tions made during the preparation of the instrument,
and in the presence of objection from the client, the
attorney can testify to only such matters as any
other subscribing witness might testify to38.
Sec. 193. The nature of the communication
may create an implied waiver of the privilege34.
Thus, where a deceased client had delivered to her
attorney a deed to be by him delivered to the grantee,
all objections to proof of such facts by the attorney
31. In re Lumib's Will, 18 N. T. Supp. 173.
32. Fayerweather v. Ritch, 90 Fed. 13.
83. Herman v. Schlesinger, 114 Wis. 382; 90 N. W. 460; 91 A. 8.
R. 922.
McMaster v. Scriven, 86 Wis. 168; 65 N. W. 149; 38 A. 8. R.
828.
In re Coleman's Will, 111 N. T. 226; 19 N. B. 71.
14. Scott v. Harris, 113 111. 455.
White v. State, 86 Ala. 69 ; 5 So. 674.
Burnside v. Terry, 51 Ga. 186.
PEIVILEGED COMMUNICATIONS 197
were waived35. And a client directing his attorney
to communicate the contents of a letter to another
lawyer, waives his privilege as to the contents of
the letter36. The same is true where the communi-
cation is oral37. A client empowering his attorney
to enter into negotiations with his adversary or into
an agreement with another party, waives the right to
prevent his attorney from testifying as to such mat-
ters and as to his authority therein38. By employ-
ing one attorney, two or more clients waive their
privilege in an action between themselves39.
Sec. 194. By making disclosure of the com-
munication40, pleading it or offering testimony sup-
porting such pleading41, failing to object to questions
designed to bring out such communication42, omit-
ting to move to strike out such testimony43, or testi-
fying thereto himself44, constitute an implied waiver
36. Rosseau v. Blean, 131 N. Y. 177; 30 N. E. 52; 27 A. S. R. 578.
36. Loflin v. Herrington, 1 Black 326 (U. S.).
37. White v. State, 86 Ala. 69 ; 5 So. 674.
38. Bartlett v. Bunn, 10 N. Y. Supp. 210 ; 56 Hun 507.
Nave v. Baird, 12 Ind. 318.
Mitchell v. Bromberger, 2 Nev. 345 ; 90 A. D. 550.
Waldo v. Beckwith, 1 N. Mex. 182.
Hager v. Shindler, 29 Cal. 63.
Henderson v. Terry, 62 Tex. 281.
Snow v. Gould, 74 Me. 540; 43 A. R. 605.
Weeks, Attorneys, Sees. 151-2.
39. Parish v. Gates, 29 Ala. 254.
40. In re Burnette. 85 Pac. 575.
41. Cole v. Andrews, 74 Minn. 93 ; 76 N. W. 962.
42. Chase's Case, 1 Bland Ch. 206; 17 A. D. 277.
Shelton v. N. Tex. Co., 32 Tex. Civ. App. 507 ; 75 S. W. 333.
Sleeper v. Abbott, 60 N. H. 162.
43. Kitz v. Buckmaster, 45 App. Div. 283 ; 61 N. Y. Supp. 64.
44. Brand v. Brand, 39 How. Pr. 193 and 282.
People v. Patrick, 182 N. Y. 131; 74 N. B. 843.
Knight v. People, 192 111. 170 ; 61 N. E. 371.
Shelton v. N. Tex. Co., 32 Tex. Civ. App. 507; 75 S. W. 338.
Hunt v. Blackburn, 128 U. S. 464.
Oliver v. Pate, 43 Ind. 132.
Becker v. Shaw, 120 Ga. 1003 ; 48 S. E. 408.
198 THE LAW or WAIVER
by the client of his privilege. And the same is true
if the client testifies on cross-examination without
objection45, interrogates the attorney concerning the
communication46, or asks him if certain matters were
riot privileged47 ; but the attorney cannot disclose the
matter on cross-examination unless asked about it
on direct 48.
8ec. 195. There is some difference among the
courts as to whether a client waives his privilege by
becoming a witness in his own behalf. On the one
hand, it is said that such constitutes a waiver and
that both client and attorney may then be compelled
to testify fully49 ; and, on the other hand, it is main-
tained that such is not a waiver50. But the best rule
is that merely becoming a witness is no waiver un-
less the privileged matter be referred to on the direct
examination of the client51, and that referring on
cross-examination to an interview or stating1 the
general nature of the conversation with his attorney
is not a waiver52. Introducing in evidence letters or
portions of correspondence from his attorney is a
waiver of their privileged character53.
45. Oliver v. Cameron, McArthur & M. 237 (D. C.).
46. Brooks v. Holden, 175 Mass. 137 ; 55 N. E. 802.
Jones v. N. M. & T. Co., 137 N. Car. 237 ; 49 S. E. 94.
Smith v. Wilson, 1 Tex. Civ. App. 14.0 ; 20 S. W. 1119.
Crittenden v. Strother, 2 Cranch C. C. 464.
47. Scales v. Henderson, 44 S. Car. 548 ; 22 S. E. 724.
48. Blount v. Kimpton, 155 Mass. 378; 29 N. E. 590; 31 A. S. R. 554.
49. Woburn v. Henshaw, 101 Mass. 193 ; 3 A. R. 333.
Eldridge v. State, 126 Ala. 63 ; 28 So. 580.
50. Duttonhofer v. State, 34 Oh. St. 91; 32 A. R. 362.
Jones v. State, 65 Miss. 179; 3 So. 379.
Tate v. Tate's Ex., 75 Va. 531.
Bigler v. Reyher, 43 Ind. 112.
61. Kaufman v. Rosenshine, 97 App. Div. 514; 90 N. Y. Supp. 205;
Affirmed, 76 N. E. 1098.
52. White v. Thacker, 78 Fed. 862; 24 C. C. A. 374.
53. West. Union v. Tel. Co., 26 Fed. 55.
PRIVILEGED COMMUNICATIONS 199
3. PHYSICIAN AND PATIENT.
A. WHO MAY WAIVE PRIVILEGE :— Sec.
196. Privileged communications between a patient
and his physician may be waived 'by the patient54, or
by his attorney55, personal representative56, though
not by an executor in an action to revoke a will57,
heir-at-law58, this however, being denied under a
statute prohibiting a physician from testifying with-
out the consent of his patient59, assignee of an in-
surance policy60, beneficiary61, guardian of a minor62,
parents of a child treated by the physician63 ; but not,
however, by the husband of the patient64, and it is
even held that only the patient can waive the privi-
lege66.
B. WHAT AMOUNTS TO A WAIVEiR:-
Sec. 197. The privileged character of communica-
tions to a physician may be waived expressly or by
implication. And express waiver arises from the use
54. Davenport v. Hannibal, 108 Mo. 471 ; 18 S. W. 1122.
Thompson v. Ish, 99 Mo. 160; 12 S. W. 510;' 17 A. S. R. 552.
Grand Rapids Co. v. Martin, 41 Mich. 667 ; 3 N. W. 173.
Andrews v. Mut. Assoc., 34 Fed. 870.
Denning v. Butcher, 91 la. 425 ; 59 N. W. 69.
55. Albertl v. Ry. Co., 118 N. Y. 77; 23 N. E. 35 ; 6 L. R. A.
765.
56. Fraser v. Jennison, 42 Mich. 206 ; 3 N. W. 882.
Morris v. Morris, 119 Ind. 341; 21 N. E. 918.
57. Heaston v. Kreig, 77 N. E. 805 (Ind.).
58. Staunton v. Parker, 19 Hun 55.
Roche v. Nason, 77 N. E. 1007 (N. Y.).
59. Flint's Estate, 100 Cal. 391 ; 34 Pac. 863.
60. Edington v. Ins. Co., 67 N. Y. 196.
61. Penn. Mut. Co. v. Wller, 100 Ind. 92; 50 A. R. 679.
62. Corey v. Bolton, 63 N. Y. Supp. 915.
63 State v. Depositer, 21 Nev. 107 ; 25 Pac. 1000.
64. Cramer v. Hurt, 154 Mo. 112; 55 S. W. 258; 77 A. S. R 752.
65 Hunt's Will, 122 Wis. 460; 100 N. W. 874.
Grattan v. Met. Ins. Co., 80 N. Y. 2S1 ; 35 A. R. 617.
Westover v. Aetna Co.. 99 N. Y. 56; 1 N. E. 104: 52 A. R. 1.
Harrison v. Sutler Co., 116 Cal. 167 ; 47 Pac. 1019.
200 THE LAW OF WAIVBE
of any words showing the necessary intention66, and
also it is an express waiver to call the physician as
a witness to testify as to such communications67.
But it is more difficult to determine what is an im-
plied waiver. Failing to object when the privileged
matter is inquired about has 'been held a waiver68,
although this has been denied69. By testifying him-
self as to the communications, a patient waives his
privilege70, 'but not by stating the condition of his
health71, or nature of his injuries72, nor by answer-
ing on cross-examination when the communication
has not been testified about on direct73, nor referred
to by the patient74, it being said that such testimony
is not voluntary so as to constitute a waiver. By
stating in an application for insurance that a certain
6«. Foley v. Royal Arcanum, 151 N. Y. 196; 45 N. E. 456; 56 A. S.
R. 121.
Andreveno v. Mut. Assoc., 34 Fed. 870.
Trull v. M. W. of A., 85 Pac. 1081 (Idaho).
Fuller v. K. of P., 129 N. Car. 318; 40 S. B. 65; 85 A. S. R.
744.
67. Holcomb v. Harris, 166 N. T. 263 ; 69 N. E. 820.
Albert! v. Ry. Co., 118 N. Y. 77; 23 N. E. 35 ; 6 L. R. A. 765.
Carrlngton v. St. Louis, 89 Mo. 216 ; 1 S. W. 240 ; 58 A. R. 108.
Morris v. N. Y., Etc. Ry. Co., 148 N. Y. 88; 42 N. E. 410; 51
A. S. R. 675.
68. Lincoln v. Detroit, 101 Mich. 245; 59 N. W. 617.
Lissak v. Crocker Est. Co., 119 Cal. 442 ; 51 Pac. 688.
89. Penn. Ry. Co. v. Durkee, 147 Fed. 99.
70. Lane v. Bonicourt, 128 Ind. 420; 27 N. E. 1111; 25 A. S. R. 442.
Highmi v. Mo. Pac. Ry., 93 Mo. App. 219.
Holloway v. Kans. City, etc., 184 Mo. 19; 82 S. W. 89.
71. McConnell v. Osage, 80 la. 293 : 45 N. W. 550; 8 L. R. A. 778.
May v. No. Pac. Ry., 32 Mont. 522; 81 Pac. 328; 70 L. R. A.
111.
72. Ind., Etc. Co. v. Hall, 165 Ind. 557 ; 76 N. E. 242.
Fox v. Union Co., 69 N. Y. Supp. 551.
73. State v. White, 19 Kans. 445 ; 27 A. R. 137.
Hemenway v. Smith, 28 Vt. 701.
Burgess v. Simms Drug Co., 114 la. 275 ; 86 N. W. 307 ; 89 A. S.
R. 359 ; 54 L. R. A. 364.
74. Butler v. Manhattan Co., 30 Abb. N. C. 78 ; 23 N. Y. Supp. 163.
PBIVILEGED COMMUNICATIONS 201
physician had treated him for a certain disease is a
waiver 'by the patient of the disability of the physi-
cian to testify concerning the disease75, although it
would have been different if the disease had not been
named76. Exhibiting a prescription to a druggist
who fills it is a waiver as to its contents77 ; and intro-
ducing in evidence records of a hospital is a waiver
of the privileged character of the records78. -Intro-
ducing proofs of death furnished an insurance com-
pany which contain an affidavit or certificate of the
attending physician, is a waiver by the beneficiary
of the privileged character of the testimony of the
physician79. A waiver of the privilege as to one
physician is not a waiver as to another who treated
the patient at another time80, and this has been held
true even where the patient was treated by two phy-
sicians at the same time81, although such doctrine
has been denied82.
While one in full possession of knowledge of his
rights as to allowing communications to his physi-
cian to be disclosed should be held to an election
once fairly made, the courts are not reconciled as to
75. Brown v. Met. Ins. Co., 65 Mich. 306; 32 N. W. 610; 8 A. S.
R. 894.
76. Jones v. Assur. Co., 120 Mich. 211 ; 79 N. W. 204.
77. Deutschman v. Ry. Co., 84 N. T. Supp. 887.
78. Kemp v. Met. Ry., 88 N. T. Supp. 1.
79. Helwig v. Mut. Ins. Co., 132 N. T. 331; 30 N. E. 834; 28 A.
S. R. 578.
SO. Green v. Nebagamain, 113 Wis. 508 ; 89 N. W. 520.
Webb v. Met. Ry. Co., 89 Mo. App. 604.
81. Mellor v. Mo. Pac. Ry., 105 Mo. 455 ; 10 L, .R. A. 36.
82. Morris v. N. T., Etc. Ry.. 148 N. T. 88; 42 N. E. 410; 51
A. S. R. 675.
202 THE LAW OF WAIVER
whether a waiver of the privilege once made is re-
vocable83, or irrevocable84.
4. HUSBAND AND WIFE:— Sec. 198.
Whether the privileged character of communica-
tions between husband and wife can be waived de-
pends upon statutory provisions, and often upon the
particular wording of the statute. The privilege
cannot be waived under a statute providing that
" Neither spouse shall be permitted to disclose any
communication made to him or her during their
marriage"85. But in the absence of statutory pro-
hibition, it would seem that one entitled to insist
on the privilege should be allowed to waive it. It has
been held, however, that the concurrence of both
spouses is essential to constitute a waiver86. But the
better rule is that the one making the communica-
tion should be entitled to waive its privileged char-
acter87, although the waiver cannot be made by a
personal representative. If on cross-examination
one spouse voluntarily state part of a conversation
with the other, he can 'be compelled to disclose all of
it88 ; and he waives his privilege by failing to object
when the communication is inquired atoout89, by in-
83. McKinney v. Grand St. Ry., 104 N. Y. 352 ; 10 N. E. 544.
Grattan v. Met. Ins. Co., 92 N. T. 274 ; 44 A. R. 372.
84. Burgess v. Sims Drug Co., 114 la. 276; 86 N. W. 307; 89 A.
S. R. 359 ; 54 L. R. A. 364.
Breisenmeister v. K. of P., 81 Mich. 525 ; 45 N. W. 977.
85. Robinson v. Robinson, 22 R. I. 121; 46 Atl. 455; 84 A. S.
R. 832.
86. Derham v. Derham, 125 Mich. 109 ; 83 N. W. 1005.
87. Stickney v. Stickney, 131 M. S. 227.
88. State v. Turner, 36 S. Car. 534 ; 15 S. E. 602.
89. Norris v. Stewart's Heirs, 105 N. Car. 455; 10 S. E. 912; 18 A.
S. R. 917.
German v. German, 7 Coldw. 180 (Tenn.).
Parkhurst v. Berdell, 110 N. Y. 386 ; 18 N. E. 123 ; 6 A. S. R.
384.
PRIVILEGED COMMUNICATIONS 203
terrogating his spouse concerning it90, or by testify-
ing about it himself91. But if he does not refer to it
on direct he cannot be asked about it on cross-exam-
ination92. And where the husband or wife either
makes the communication public by giving it to an-
other, the privilege is lost93, as if one voluntarily
gives to a third person letters received from the
other spouse, the privilege is waived94.
90. Columbia, Etc. Ry. v. Hawthorne, 3 Wash. 353 ; 19 Pac. 25.
Dickerman v. Graves, 6 Gush. 308; 53 A. D. 41.
91. Id.
92. Williams v. State, 40 Tex. Crim. 570 ; 51 S. W. 224.
People v. Garner, 72 N. T. Supp. 66.
People v. Mullings, 83 Cal. 138 ; 23 Pac. 229 ; 17 A. S. R. 223.
93. State v. Hoyt, 47 Conn. 540 ; 36 A. R. 89.
State v. Buffington, 20 Kans. 599 ; 27 A. R. 193.
94. People v. Hayes, 140 N. Y. 484; 35 N. E. 951; 37 A. S. R. 572.
See : Lloyd v. Pennie, 50 Fed. 4.
Com. r. Sapp, 90 Ky. 580; 14 S. W. 834; 29 A. S. R. 405 and
note.
20* THE LAW OF WAIVES
CHAPTER 9.
REDEMPTION.
Section
1. UNOBSR MORTGAGES —
A. By Concurrent Agreement —
(1) In mortgage ....-, 199
(2) By separate instrument 202
D. By Subsequent Agreement 205
O. By Laches 210
D. By other conduct •„•. . 2'13
A. BY CONCURRENT AGREEMENT —
(1) IN MORTGAGE :-^Sec. 199. At common
law a failure on the part of a mortgagor in strict
fulfillment of the conditions of his mortgage result-
ed in the loss forever of his whole estate. To pre-
vent the hardships and injustice that arose from the
enforcement of such a drastic rule, courts of equity
created and impliedly reserved to every mortgagor
an equity of redemption, an estate separate and dis-
tinct from the rights vested in the mortgagee and
indefinite in its duration, under which he was given
the right to regain his whole estate within a reason-
able time by paying the debt and all proper charges
thereon. However, it is now usual for statutes to
provide a time within which the right to redeem
must be exercised, and when such is provided it is
conclusive as to the time.
Sec. 200. The protection afforded the mortga-
gor is of still further extent. It is practically the uni-
versal holding that he cannot, by any statement or
provision in the mortgage itself, bar himself from
the right to have and exercise this equity of redemp-
tion ; and that no agreement at the time the mortgage
is executed that in default of the mortgagor the pur-
REDEMPTION" 20»
chaser shall become absolute owner of the premise*
shall be permitted to bar the right to redeem if it
once existed95. The reasons actuating courts in pro-
mulgating and applying such a rule are identical
with those influencing them in refusing to permit a
debtor to waive in advance the exemptions allowed
to him by law for the benefit of himself and those
depending upon him. Were the rule different, dire
necessity would frequently compel debtors to enter
into such inequitable agreements; but by reason of
the beneficent cloak of protection thrown around
them by the courts and by statutory provisions, it
matters not how clearly expressed may be the inten-
tion of the parties to waive or release the equity of re-
demption through provisions in the mortgage, this
intent is contrary to all principles of equity and wifl
not be given effect96.
Sec. 201. And it makes no difference that tha
instrument containing a waiver of the right to re-
deem is not in the form of a mortgage. It may be a
deed otherwise absolute on its face, or it may assume
any other form. The criterion by which the transac-
tion is to be guaged is whether or not the instrument
is security for a debt ; if it be, then the right of re-
demption becomes so inseparably a part of it that it
15. Gillis v. Martin, 2 Dev. Eq. 470 (N. Car.) ; 25 A. D. 7J».
Peugh v. Davis, 96 U. S. 322; 24 L. Ed. 775.
Clark v. Condit, 18 N. J. Eq. 358.
Wilson v. Drumrite, 21 Mo. 325.
Quartermous v. Kennedy, 29 Ark. 544.
Lousbury v. Norton, 59 Conn. 170.
Turpie v. Lowe, 114 Ind. 37 ; 15 N. E. 834.
Shank v. Groff, 43 W. Va. 337; 27 S. E. 340.
Batty v. Snook, 5 Mich. 231.
t«. Kayley v. Bailey, 5 Gray 505 (Mass.) ; 71 Mast. IOS.
Jackson v. Lynch, 129 111. 72 ; 22 N. E. 24«.
206 THE LAW OF WAIVES
cannot be waived or released by any declaration or
provision therein97. So, an absolute conveyance cou-
pled with an agreement that it shall be void if a
certain debt due the grantee is paid within a year is,
in equity, a mortgage, and the grantor has the right
to redeem by paying the debt08. The want of a cove-
nant for the repayment of the mortgage money is no
bar to redemption, for every mortgage implies a
loan, and every loan and every debt is a promise to
pay".
2. BY SEPAEATE INSTEUMENT :— Sec.
202. The principles above announced hold good if
the waiver or release be contained in a separate in-
strument executed concurrently with the mortgage
or other conveyance. Thus, a grantor executed and
delivered a deed absolute in form; the grantee, in
turn, executed and delivered to the grantor an instru-
ment providing that if the debt should be paid within
a year then the deed should be void ; the grantee sub-
sequently through misrepresentations induced the
grantor to surrender the latter instrument and at
once took possession under the deed; the grantor
brought action to set aside the deed and for other
relief. The court held, among other things, that if
an instrument is once a mortgage it is always a mort-
gage, the effect of which is to protect borrowers from
being forced by their necessities into unequal and
97. Plato v. Roe, 14 Wis. 543.
Jackson v. Lynch, supra.
Linnell v. Lyford, 72 Me. 280.
Fields v. Helms, 82 Ala. 449 ; 3 So. 106.
Lender v. Caldwell, 4 Kans. 339.
98. Toule v. Richards, 1 Saxt. Ch. 534 (N. J.) ; 23 A. D. 722.
99. Critcher v. Walker, 1 Murph. 488 (N. Car.) ; 4 A. D. 576.
REDEMPTION" 207
oppressive bargains; that if the conveyance is a
mortgage in the beginning, the right of redemption
is an independent incident and cannot be restrained
or clogged by agreements100.
Sec. 203. And it is the general rule, almost uni-
versally applied, that where an absolute conveyance
is accompanied by another instrument of defeasance
providing that the property shall be reconveyed upon
payment of a debt or the performance of some other
condition secured by such conveyance, the two in-
struments together are a mortgage and the right of
redemption is a necessary ingredient of the transac-
tion1 ; and such instrument, separate from the con-
veyance proper, can no more cut off, restrain, waive
or release the equity of redemption than the convey-
ance itself might. And in such a case the grantor's
right to redeem is not affected by receipts and ac-
counts given him reciting and recognizing the deed as
an absolute conveyance3. Nor is the right to redeem
affected by the fact that the grantor, holding the se-
parate instrument of defeasance, withheld same from
the public records for the purpo.se of misleading and
delaying his creditors3.
Sec. 204. One case in Colorado seems at vari-
ance with the foregoing, for it is said that the parties
may stipulate in a trust deed that no right of re-
100. Youle v. Richards, supra.
Henry v. Davis, 7 Johns. Ch. 42.
1. Dubuque Bank v. Weed, 57 Fed. 513.
Bunker v. Barren, 79 Me. 62 ; 8 Atl. 253 ; 1 A. S. R. 282.
Halsey v. Martin, 22 Cal. 645.
Freeman v. Wilson, 51 Miss. 329.
Lanahan v. Sears, 102 U. S. 318 ; 26 L. Ed. 180.
2. Bayley v. Bailey, 5 Gray 505 (Mass.) ; 71 Mass. 505.
3. Clark v. Condit, 18 N. J. Eq. 358.
208 THE LAW OF WAIVER
demption shall remain to the grantor and that such
stipulation shall be given effect4. But the decided
preponderance of authority supports the doctrine
that irrespective of the intention of the parties, a
mortgagor has the right to redeem his estate, a
right which he cannot waive or release either by a
provision to that effect in the mortgage or other con-
veyance as security, or by a separate instrument exe-
cuted and delivered concurrently with the convey-
ance5.
B. BY SUBSEQUENT AGREEMENT :— Sec.
205. As has been above noted, equity will narrowly
scan transactions wherein one party is in a position
to exercise undue pressure upon the other, and it is
for such reason that a mortgagor is not permitted
to alienate his right of redemption at the time of
making the loan. At such time the exigences of his
condition may be such that an unscrupulous lender
would prey upon his necessities for the purpose of
exacting a grossly inequitable bargain; and the se-
curing instrument, while showing on its face a
straight and voluntary transaction, would in ef-
fect be an expression of the straights to which the
grantor had been driven by untoward circumstances.
Sec. 206. But these conditions do not exist after
the making of the original agreement. The mort-
gagor has relieved himself temporarily by means of
the transaction and is in a better position to combat
any exacting designs that might be attempted by the
4. Nippel v. Hammond, 4 Colo. 211.
6. Boyd v. Roane, 49 Ark. 397 ; 6 S. W. 704.
Shields v. Russell. 66 Hun 220; 20 N. T. Supp. 809.
Affirmed: 142 N. T. 290; 36 N. E. 1061.
REDEMPTION 200
mortgagee. And while it is said that an agreement
subsequent to the mortgage by which the entire es-
tate of the mortgagor is to become absolute in the
mortgagee if the debt be not paid by the specified
date will be viewed suspiciously and watched narrow-
ly6, yet it is the general rule, subject to a few excep-
tions, that the mortgagor may, subsequent to the ex-
ecution of the mortgage, release or waive his equity
of redemption; but such release or waiver must be
voluntarily given for a sufficient consideration and
without fraud or undue influence on the part of the
mortgagee7.
Sec. 207. The mode of evidencing such waiver
is immaterial. It may be made by a separate instru-
ment expressly releasing the equity of redemption,
or the owner of the equity may convey the premises
to the mortgagee and thus waive or cut off his right
to redeem8. But it is said that such a conveyance
is not a waiver or extinguishment of the right to re-
deem unless it was accepted as a full payment of the
debt9, and, again, if the mortgagee use the power of
his mortgage to procure the equity of redemption
for less than its value, equity will yet permit the
«. Hyndman v. Hyndman, 19 Vt. 9 ; 46 A. D. 171.
Linnell v. Lyford, 72 Me. 280.
7. Wilson v. Vanstone, 112 Mo. 315; 20 S. W. 612.
Villa v. Rodriguez, 12 Wall. 323 (U. S.).
Moeller v. Moore, 80 Wis. 434; 50 N. W. 396.
Watson v. Edwards, 105 Cal. 70 ; 38 Pac. 527.
Vennum v. Babcock, 13 la. 194.
Seymour v. Mackay, 126 111. 341 ; 18 N. E. 552.
Hoover v. Johnson, 47 Minn. 434; 50 N. W. 475.
Shaw v. Walbridge, 33 Oh. St. 1.
4 Kent, Com. Art. 143.
Marshall v. Stewart, 17 Oh. 356.
8. Braun v. Vollmer, 85 N. T. Supp. 319; 89 App. Dlv. 41.
t. Robertson v. Wheeler, 162 111. 566 ; 44 N. E. 870.
210 THE LAW OF WAIVER
mortgagor to redeem10. In another case it was held
that if a mortgagor convey the premises to the mort-
gagee for no other consideration than the satisfac-
tion of the debt, the burden is on the latter, if the
transaction be attacked for fraud, to show that it
was fair and that the conveyance of the equity of
redemption was voluntarily and intelligently given
upon a contract of sale entirely disconnected from
the mortgage contract11.
Sec. 208. But there is no good reason why a
mortgagee may not purchase from and deal with
the mortgagor as freely as any third person might.
The subsequent release or waiver of the equity of
redemption by the mortgagor to the mortgagee is a
matter of common occurrence, and there is nothing
in the policy of the law that forbids such transfer.
But as the mortgagee, particularly if in possession,
may exercise an undue and improper influence over
the mortgagor, especially if the latter be in needy
circumstances, the transaction will always be closely
scrutinized so as to prevent any oppression of the
debtor; and it seems that only constructive fraud
or an unconscientious advantage which ought not to
be retained need be shown to avoid such a purchase^
If the sale be made for a fair price and upon a full
consideration, or under circumstances where the
mortgagor could exercise an unembarrassed will, the
relationship of the parties would, of course, form
no objection; yet courts view all transactions be-
tween mortgagor and mortgagee with considerable-
!•. Noble v. Graham, 140 Ala. 413 ; 37 So. 230.
11. Hall v. Hall, 41 S. Car. 163 ; 44 A. S. R. 696, citing:
Russell v. Southard, 12 How. 139 (U. S.).
Jones on Mortgages, Sec. 711.
REDEMPTION 211
jealousy and will set aside such sales whenever, by
the influence of his incurabrance, the mortgagee has
purchased for a consideration grossly inadequate or
for less than others would have given12.
Sec. 209. The release or waiver of the equity
of redemption may be made by a parol agreement,
according to the decided cases. And it is said that
the grantor will not be permitted to invoke the stat-
ute of frauds where he has executed an absolute deed
which in fact was but security for a debt but subse-
quently he has by a parol agreement waived or re-
leased his equity13. But this ruling appears to us
of questionable propriety, to say the least. The
equity of redemption is an estate in lands reserved
to the mortgagor by law if not by the instrument it-
self. The opportunities for fraud or undue influ-
ence are equal to if not greater than those in any
other classes of land transactions. And in the waiv-
er of this right not only should there be a sufficient
consideration, but the transaction should be evi-
denced by an instrument of writing according to
the requirements of the statute of frauds. The fact
12. II Warvelle on Vendors, citing:
Russell v. Southard, 12 How. 139.
Pugh v. Davis, 96 U. S. 337.
Holdridge v. Gillespie, 2 Johns. Ch. 34 (N. Y.).
Oliver v. Cunningham, 7 Fed. 689.
See, also: 2 Washburn, Real Property, Sees. 23-24.
Ten Eyck v. Craig, 62 N. T. 406 ; 2 Hun 452.
Dennis v. Tomlinson, 49 Ark. 568; 6 S. W. 11.
Phelan v. De Martin, 85 Cal. 365 ; 24 Pac. 725.
Hinkley v. Wheelwright, 29 Md. 341.
Clark v. Clough, 65 N. H. 43 ; 23 Atl. 526.
Bagler v. Stabler, 91 Ala. 308; 9 So. 157.
It. Bazemore v. Mullins, 52 Ark. 207 ; 12 S. W. 474,
McMillan v. Jewett. 86 Ala. 476; 5 So. 145.
Shaw v. Walbridge, 33 Oh. St. 1.
Phelps v. Seely, 22 Gratt. 573 (Va.).
212 THE LAW OF WAIVES
that the mortgage is in the form of a deed absolute
should make no difference. If once a mortgage, it
can have no further effect than as a mortgage, and
where fraud could enter so easily the doors should
not be opened by permitting the nature of the instru-
ment to be changed by a parol agreement of the
parties14.
C. BY LACHES :— Sec. 210. The right of re-
demption is an equitable right. And in equity it is
the rule that when the court is asked to lend its aid
in the enforcement of a demand that has become
stale, there must be some cogent and weighty reasons
presented why it has been permitted to become so.
Good faith, conscience and reasonable diligence of
the party seeking relief are the elements that call a
court of equity into action. In the absence of those
elements the court becomes passive and refuses to ex-
tend its relief or aid15. Therefore, he who is en-
titled to redeem from a mortgage must be reason-
ably diligent in the exercise of that right and must
assert it within a reasonable time and before the
situation of the parties has changed or the rights
of innocent third parties have intervened. For to
sit idly by and permit any of these conditions to
arise with knowledge of his right to redeem would
amount to a waiver of the equity. In other words,
the laches of the owner of the right of redemption
in asserting it is a bar to that right16.
14. See: Keller v. Kirby. 34 Tex. Civ. App. 404; 79 S. W. 82.
15. McDearmon v. Burnham, 158 111. 62; 41 N. E. 1094.
16. Bergen v. Bennett, 1 Cal. Gas. 1 (N. Y.) ; 2 A. D. 281.
Hall v. Westcott, 15 R. I. 375; 5 Atl. 629.
McAoee v. Harrison, 50 S. Car. 39 ; 27 S. E. 539.
Askew v. Sanders, 84 Ala. 356; 4 So. 167.
REDEMPTION 213
Sec. 211. Many states have by legislative enact-
ments provided a time within which the right to re-
deem must be exercised. Of course, where there is
such a provision, it is conclusive as to time, and a
lapse of the specified time without redemption
Avaives the right absolutely. But in the absence of
such a statute, as above noted, acquiescing for more
than a reasonable time, is a bar also; and here, as
in all other cases, what is a reasonable time is to be
determined by all the facts surrounding any particu-
lar transaction.
Sec. 212. Thus, in one case it was said that
four years after he has knowledge of the sale and
proceedings, during which time he has remained in-
active and acquiesced, is too late to redeem and he
is barred of his right17. In another it was held that
the equity of redemption from a mortgage foreclos-
ure cannot be enforced when all parties have sup-
posed that the foreclosure was good and the holder
of the equity has abandoned the premises and all
claim to them, never paying any taxes or offering to
redeem until after a series of years when the proper-
ty has passed through several hands and become
valuable18. So, a delay of sixteen years has been
held fatal19, and five years20, and the lapse of any
period of time evidencing in the particular case an
election by the mortgagor to permit the sale to
stand. A grantor in an absolute deed acquiesced in
the transaction for a period of six years, paid no
17. Hamilton v. Lubukee, 51 111. 415; 99 A. D. 562.
Ryan v. Kales, 20 Pac. 311 (Ariz.).
18. Walker v. Warner, 179 HI. 16; 53 N. E. 549 ; 70 A. S. R. 85.
19. Bergen v. Bennett, 1 Cal. Cas. 1 (N. Y.) ; 2 A. D. 281.
20. Danforth v. Roberts, 20 Me. 307.
214 THE LAW OF WAIVER
taxes on the property, and made no objection while
the grantee made valuable and expensive improve-
ments, and it was held that he could not then claim
that the conveyance was only a mortgage given to
secure a debt after he had thus slept on his rights
and induced others to act on the belief that he had
abandoned them21. And the same decision was
reached in another case where the delay was for nine-
teen years22; and fourteen years23; and nine years
and ten months24 ; and seven years25 ; and even three
years26 ; all of which have, under a variety of facts
and circumstances, been held sufficient delay to con-
stitute laches in asserting the right to redeem and,
consequently, a waiver of such right which cannot
then be taken advantage of27.
D. BY OTHER CONDUCT :— Sec. 213. A mort-
gagor may bar himself of his right to redeem in a
variety of methods not hereinbefore mentioned. It
is sufficient if his conduct evince that intention, pro-
vided a sufficient consideration has passed, which
may be a benefit to himself or a detriment to the
mortgagee. A waiver was held to have been pro-
duced by the conduct of the mortgagor in encourag-
ing another to buy the property by promising not to
21. Schradski v. Albright, 93 Mo. 42 ; 5 S. W. 807. •
22. Ketchum v. Johnson's Ex'rs., 4 N. J. Eq. 370.
23. McDearmon v. Burnham, 158 111. 55 ; 41 N. E. 1094.
24. Askew v. Sanders, 84 Ala. 356 ; 3 So. 167.
25. Munn v. Surges, 70 111. 604.
26. Kline v. Vogel, 90 Mo. 239 ; 1 S. W. 733 and 2 S. W. 408.
27. Tetrault v. Fournier, 187 Mass. 58; 72 N. E. 351.
Mann v. Jobusch, 70 111. App. 440.
Baker v. Bailey, 204 Pa. St. 524; 53 Atl. 868.
MacGregor v. Pierce, 17 S. Dak. 51 ; 95 N. W. 281.
Snipes v. Kelleher, 31 Wash. 386 ; 72 Pac. 67.
REDEMPTION 215
redeem28; also where the mortgagor agreed during
foreclosure that the property might be sold in
fee simple free of all conditions, limitations or
restrictions29. Or if he remains inactive during the
whole redemption period and acquiesces in the de-
livery of a sheriff's deed to one who does redeem30,
or accepts a deed to a portion of the mortgaged
premises in satisfaction of his claim of the right to
redeem31, or if he agrees that the grantee of a deed
absolute, given as security, shall convey the prem-
ises to another32, or where he joined with the mort-
gagee in making a sale of the mortgaged premises,
agreed to give warranted title and possession, re-
ceived a part of the purchase-money and permitted
the purchaser to enter into possession33 — in each of
these cases the mortgagor was refused the right to
redeem.
Sec. 214. But at the time of the alleged waiver
of the right to redeem, the one having the right must
have knowledge of it. Thus, it was held that one
ignorant of his right to redeem did not debar him-
self from the privilege by agreeing to give posses-
sion of the premises prior to the expiration . of the
period allowed for redemption, even where a pur-
chaser was induced by such agreement to buy the
property and make improvements thereon34.
28. Southard v. Sutton, 68 Me. 575.
Fay v. Valentine, 12 Pick. 40 ; 22 A. D. 397.
Woods v. McGarock, 18 Tenn. 133.
29. King v. King, 215 111. 100 ; 74 N. E. 89.
30. MacGregor v. Pierce, 17 S. Dak. 51; 95 N. W. 281.
31. Bedford v. Moore, 54 Mo. 448.
32. Noxon v. Glen, 2 N. Y. St. R. 661.
33. Wright v. Whithead, 14 Vt. 268.
34. Wood v. Holland, 64 Ark. 104 ; 40 S. W. 704.
THE LAW OP WAIVES
CHAPTER 10.
STATUTE OP LIMITATIONS.
Section
1. PREiLIiMiIlNARY 21i5
2. ACKNOWLEDGMENT OF DEOBT 219
3. NEW PROMISE TO PAY 222
A. Part Payment 224
4. FAILURE TO PLEAD TOE STATUTE —
A. In Civil Actions 22,5
B. In Criminal Cases 226
1. PRELIMINARY:— Sec. 215. Statutes of
limitation are statutes of repose to be liberally con-
strued with reference to the attainment of the ob-
ject and purpose of their existence. The statutes
affect the remedy and not the right or defense itself
nor the moral obligation of one person to discharge
a duty owing by him to another. The right to rely
upon and take advantage of a statute of limitation
is a personal right belonging to the debtor in any
particular case, and is a right strictly within his
province to invoke or disregard as he may elect. No
one can compel him to take advantage of it, and
neither can he be coerced into relinquishing its ad-
vantages35. So, at the trial of an action a debtor
may, even over the protest and objection of his at-
torney, refuse to avail himself of the benefit of the
statute36 ; and, on the other hand, he may invoke its
protection despite the attempts of his counsel to
surrender it37, unless the attorney was expressly
authorized in that behalf.
15. Allen v. Smith, 129 U. S. 470.
Sheppard's Estate, 180 Pa. St. 67; 36 Atl. 422.
Kennedy v. Powell, 34 Kans. 23 ; 7 Pac. 606.
36. Lewis v. Buckley, 73 Miss. 58; 19 So. 197.
$7. Spreckels v. Ord, 72 Cal. 86 ; 13 Pac. 158.
STATUTE OF LIMITATIONS 217
Sec. 216. In taking advantage or failing to
take advantage of the statute of limitations, two
principles are involved — that of election and that of
waiver. The consideration of one necessarily in-
cludes the other, for in this connection a waiver
either expressly or inferentially means that the
debtor elects to forego a right that he might avail
himself of. Therefore, it follows that a waiver may
be produced by one of two means — by an agree-
ment to that effect and by conduct inconsistent with
an intention to invoke the statute. Where the waiv-
er relied on is one produced by agreement, no special
form of language is essential to its validity. The
necessary ingredient is that the plain intent and pur-
port of the words used, are to waive the benefit of
the statute38. And it is not required that such agree-
ment shall be in writing, even where the statute re-
quires a written promise to pay or acknowledgment
of the debt39.
Sec. 217. Whether or not a consideration is
requisite to 'a valid agreement to waive the statute
depends somewhat upon the time when the agree-
ment is made, although other than from theoretical
considerations the question has but little to do with
the waiver. For if the agreement be made prior
to the bar of the statute, the forbearance to sue,
88. Burton v. Stevens, 24 Vt. 131 ; 68 A. D. 153.
Jordan v. Jordan, 85 Tenn. 563 ; 3 S. W. 896.
In re King. 94 Mich. 411 ; 54 N. W. 178.
Bridges v. Stephens, 132 Mo. 524 ; 34 S. W. 555.
39. Lewis v. Buckley, 73 Miss. 60; 19 So. 197.
San Antonio, Etc. v. Stewart, 94 Tex. 441 ; 61 S. W. 386.
Joyner v. Massey, 97 N. Car. 148 ; 1 S. E. 702.
Warren v. Walker, 23 Me. 453.
218 THE LAW OF WAIVER
either express or implied, is a consideration40, and
if it be made after the lapse of the period limited by
the statute, the existence of the debt and the moral
obligation created thereby are a sufficient considera-
tion41.
Sec. 218. The effects of a waiver of the statute
of limitations can in no sense be extended to a per-
manent removal of its operation. The logical result
is that such waiver creates a new period, starting the
statute afresh and extending the same length of time
as originally applying, unless the agreement is for
a waiver for a limited time, in which event suit must
be brought within a reasonable time or the bar may
again be invoked42.
2. ACKNOWLEDGMENT OF DEBT:— Sec.
219. Whether acknowledgment of the debt after
lapse of the statutory period will waive the bar of
the statute depends upon the character of the ac-
knowledgment, for it is not every acknowledgment
that will in itself be held a waiver. Thus, the
mere acknowledgment that the debt is unpaid is held
by most courts to be insufficient to amount to a
waiver of the statute43. The contrary, however, has
been held under statutory provision44, and it is said
40. Benson v. Phlpps, 87 Tex. 578 ; 29 S. W. 1061 ; 47 A. S. R. 128.
Gay v. Hassom, 64 Vt. 495 ; 24 Atl. 715.
Burton v. Stevens, 24 Vt. 131 ; 58 A. D. 153.
41. Pittman v. Elder, 76 Ga. 371.
Jordan v. Jordan, 85 Tenn. 563 ; 3 S. W. 896.
42. Kellog v. Dickinson, 147 Mass. 432 ; 18 N. E. 223.
Trask v. Weeks, 81 Me. 325; 17 Atl. 162.
Joyner v. Massey, 97 N. Car. 148 ; 1 S. E. 702.
Wells, Fargo v. Enrlght, 127 Cal. 669 ; 60 Pac. 439.
43. McLean v. Thorp, 4 Mo. 256.
Prescott v. Vershire, 63 Vt. 5i? ; 22 Atl. 665.
Levlstone v. Marigny, 13 La. Ann. 353.
44. Stewart v. McParland, 84 la. 55 ; 50 N. W. 221.
Reymond v. Newcomb, 10 N. Mex. 151; 61 Pac. 205.
STATUTE OF LIMITATIONS 219
that an unqualified acknowledgment of an indebted-
ness is sufficient to lift the bar of the statute45 ; and
some courts have gone a greater distance in holding
an acknowledgment of a debt to be a waiver of the
right to invoke the protection of the statute46.
Sec. 220. But we can scarcely reconcile our
views to the proposition that a mere admission of in-
debtedness should be sufficient to deprive him for
whose benefit a statute has been made of its force
and protection. The very object of the creation of
such a statute was to create a bar to all claims not
sued on within a certain time, and to say that by a
mere acknowledgment that the debt has not been
paid the effect of the statute is to be held waived is,
in our opinion, going farther than sound reason or a
proper interpretation of the intent of the statute will
permit the proper doctrine should be that the ac-
knowledgment, in order to constitute a waiver of the
statute, must indicate, either expressly or impliedly,
a recognition by the debtor of a present indebted-
ness and an intention to pay it47. Or, as it has
been said, an acknowledgment sufficient to remove
the bar of the statute must contain a clear and un-
equivocal acknowledgment of the debt, a specifica-
tion of the amount of it, and an express or implied
promise to pay it48 ; or, again, there must be a clear,
distinct and unequivocal promise to pay as distin-
45. Cole v. Putnam, 62 N. H. 616.
Gartrell v. Linn, 79 Ga. 701 ; 4 S. B. 918.
Krueger v. Krueger, 76 Tex. 178; 12 S. W. 1004.
Tost v. Grim, 116 Pa. St. 527 ; 8 Atl. 925.
46. Gusty v. Dolan, 159 Mass. 245; 34 N. E. 360; 38 A. S. R. 419.
47. Manchester v. Braedner, 107 N. Y. 346; 14 N. E. 405; 1 A. S. R.
829.
48. Ward v. Jack, 172 Pa. St. 416 ; 33 Atl. 577 ; 51 A. S. R. 744.
320 THE LAW or WAIYBB
griished from a promise implied from an acknowl-
edgment of the justness or existence thereof, and
a mere expression of an intention to pay the debt
is insufficient49. The Supreme Court of the United
States has from an early day held to the principal
that an acknowledgment of a debt must, in order
to be held a waiver of the statute, be something
more than an admission consistent with the impli-
cation of a promise to pay. It must be such as to
indicate a present liability and a willingness to
pay50.
Sec. 221. A different proposition is presented
where the debtor acknowledges and admits that the
debt is a present and subsisting liability; for from
such an acknowledgment necessarily arises the pre-
sumption that the debtor will pay his obligations and
from this must be the implication of a promise to
pay ; especially if the admission contain nothing neg-
ativing an intention to pay51. But such an admis-
*». Shockey v. Mills, 71 Ind. 288 ; 36 A. R. 196.
60. Clementson v. Williams, 8 Cranch 72.
Bell v. Morrison, 1 Pet. 352.
Shepherd v. Thompson, 122 U. S. 231.
Bullion Bank v. Hegler, 93 Fed. 890.
To the same effect, see: Ensign v. Batterson, 68 Conn. 298; 36
Atl. 51.
Taylor v. Poster, 132 Mass. 30.
Switzer v. Noffsinger, 82 Va. 518.
Shown v. Hawkins, 85 Tenn. 214; 2 S. W. 34.
Belles v. Belles, 12 N. J. L. 339.
Drake v. Sigafoos, 39 Minn. 367 ; 40 N. W. 257.
61. Lang v. Gage, 66 N. H. 624; 32 Atl. 155.
Tenn. Br'g. Co. v. Hendricks, 77 Miss. 491; 27 So. 526.
Kirby v. Mills, 78 N. Car. 124 ; 24 A. R. 460.
Gardenhire v. Rogers, 60 S. W. 616 (Tenn.).
Clark v. King, 54 Kans. 222 ; 38 S. W. 281.
Philips v. Peters, 21 Barb. 351 (N. Y).
Honn v. Pinnell, 61 111. App. 137.
Hunter v. Kittridge, 41 Vt: 359.
Olvey v. Jackson, 106 Ind. 286 ; 4 N. E. 149.
STATUTE OP LIMITATIONS 221
eion must iiot be confounded with an acknowledg-
ment of an original indebtedness. For the latter it
by no means an admission of a binding character.
3. NEW PROMISE TO PAY:— Sec. 222. The
question above considered, as to what acknowledg-
ment or admission will be sufficient to constitute a
waiver of the statute of limitations must, in fact,
be resolved into a question of whether under the
circumstances or form of the acknowledgment a new
promise to pay arises. For, resolved to its ultimate
analysis, a waiver of the statute may be said never
to occur unless there is either express or implied a
new promise to pay the debt against which the stat-
ute may be sought to be invoked. "Where there is
an express new promise to pay the old debt, there
can be no question, unless under the statutory regu-
lation, that the effect of the statute is waived and
it will be started afresh, whether the new promise is
made before or after the original indebtedness has
become barred52.
Sec. 223. In a majority of the states statutory
provision has been made to the effect that no ac-
knowledgment or new promise shall be sufficient to
waive the bar of the statute of limitations unless the
same shall be in writing and signed by the debtor or
under his authorization. It is essential that all of
the elements of a complete new promise appear in
the writing, although no special form is necessary,
and it will be sufficient if from the writing a liability
of the debtor to pay the specified debt may be im-
62. Damon v. Leque, 17 Wash. 573 ; 50 Pac. 485 ; 61 A. S. R. 927.
Malone v. Searight, 8 Lea 94 (Tenn.).
See: Warren v. Cleveland, 111 Tenn. 174; 76 S. W. 910; 102
A. S. R. 749, and splendid note thereto.
222 THE LAW OF WAIVEB
plied53. Thus, it has been held that letters written
by the debtor, sufficient in other respects, are suf-
ficient in form to amount to a waiver in the form of
a new promise54; also, giving written orders on a
third person55, giving checks56, although this latter
would be held a waiver at any rate on account of
being part payment ; and giving notes with security
has the same effect57. The courts are not agreed as
to the giving of security by the debtor upon an in-
debtedness barred by the statute. Some courts hold
that the giving of security does not revive the debt,
if barred, nor start the statute anew only in so far
as the security will discharge the debt58. Others
hold that the giving of security is a payment pro
tanto and, therefore, a waiver of the statute59. But
others, with perfectly good reasoning, hold that the
giving of security for an old indebtedness is the best
evidence that the debtor recognizes the debt as a
subsisting obligation and a manifestation of a will-
ingness to pay60. No other deduction can be logic-
M. Richards v. Hayden, 8 Kans. App. 816; 57 Pac. 978.
Manchester v. Braedner, 107 N. Y. 346; 14 N. E. 405 ; 1 A. S. R.
829.
S4. Burnett v. Hunger, 23 Tex. Civ. App. 278; 56 S. \V. 10».
Osment v. McElrath, 68 Cal. 466; 9 Pac. 731; oS A. R. 17.
Miller v. Beardsley, 81 la. 720; 45 N. W. 756.
K. Manchester v. Braedner, 107 N. Y. 346 ; 14 N. E. 405 ; 1 A. S. R.
829.
§6. McGinty v. Henderson, 41 La. Ann. 382 ; C So. 658.
67. Blair v. Carpenter, 75 Mich. 167; 42 N. W. 790.
§8. Shepherd v. Thompson, 122 U. S. 231.
S9. Campbell v. Baldwin, 130 Mass. 199.
Pracht v. McNee, 40 Kans. i ; 18 Pac. 925.
Wolford v. Cook, 71 Minn. 77 ; 73 N. W. 706.
Creighton v. Vincent, 10 Oreg. 56.
Smith v. Ryan, 66 N. Y. 352 ; 23 A. R. 60.
CO. Taylor v. Hunt, 118 N. Car. 168 ; 24 S. E. 359.
Hamption v. France, 17 Ky. L. R. 980 ; 32 S. W. 96».
Osborne v. Heuer, 62 Minn. 507; 64 N. W. 1151.
STATUTE OP LIMITATIONS 223
ally drawn from the act, nor could a more concise
illustration of an implied promise foe cited.
A. PAET PAYMENT:— Sec. 224. Part pay-
ment of a debt barred by the statute of limitations
is a common form of acknowledgment of an indebt-
edness sufficient to waive the statute if the part pay-
ment be made under circumstances involving an ad-
mission of the whole61. But there must be an ex-
press or implied promise to pay the remainder of
the debt. For if at the time of the part payment
the debtor declares that he will not pay the balance,
the part payment is insufficient to amount to a
waiver62. And the part payment, to have such effect,
must be voluntary ; for it is said that the entire ef-
ficiency of a payment to avert the effect of the stat-
ute as a bar rests in the conscious and voluntary
act of the debtor, explainable only as a recognition
and confession of an existing liability63. The pay-
ment of interest is equally efficacious to toll the stat-
ute or to start it anew, and amounts to an acknowl-
edgment of the principal debt from which a new
promise to pay will be implied64.
«1. Cucullu v. Hernandez, 103 U. S. 105.
Hale v. Morse, 49 Conn. 481.
Engmann v. Immel, 59 Wis. 249 ; 18 N. W. 182.
Buxton v. Edwards, 134 Mass. 567.
Walker v. Wait, 50 Vt. 668.
Glick v. Crist, 37 Oh. St. 388.
Kuhn v. McKay, 7 Wyo. 42 ; 49 Pac. 473 ; 51 Pac. 205.
•2. Lester v. Thompson. 91 Mich. 245; 51 N. W. 893.
•3. 19 Am. & Eng. Enc. L. 326, citing:
Lang v. Gage, 65 N. H. 173 ; 18 Atl. 796.
See: Thomas v. Brewer, 55 la. 227; 7 N. W. 571.
«4. Topeka Capital v. Merriam, 60 Kans. 397 ; 56 Pac. 757.
Bennett v. Baird, 67 111. App. 442.
Blair v. Carpenter, 75 Mich. 167; 42 N. W. 790.
Dickson v. Gourdin, 26 S. Car. 391; 2 S. E. 303.
224 THE LAW OF WAIVER
In some jurisdictions where statutory provis-
ions require an acknowledgment to be in writing in
order to affect the limitation, it is held that part pay-
ment is not a waiver as it is not a compliance with
the statute65, although in others, even where such
provision exists, the part payment is given effect
as a waiver06.
4. FIAULURiE TO PLEAD:
A. IN CIVIL ACTIONS:— Sec. 225. Where
a defendant is sued upon an indebtedness against
which the statute of limitations has run the stat-
ute is an absolute bar to the action by way of defense
and is ground for the discharge of the defendant.
But the statute is an affirmative defense, and the
right to take advantage of it is a personal one be-
longing solely to the defendant, which he may take
advantage of or waive as he may desire. When ac-
tion is brought on a debt so barred, the defendant
must set up the statute and his right to rely upon it
in some appropriate pleading, or his privilege will
be waived and a judgment against him for the debt
so barred will be binding67 ; for it is said that ' l The
65. Hale v. Wilson, 70 la. 311 ; 30 N. W. 739.
Perry v. Ellis, 62 Miss. 718.
Wilcox v. Williams, 5 Nev. 206.
66. Kirk v. Williams, 24 Fed. 448.
Kelly v. Leachman, 3 Idaho 629 ; 33 Pac. 46.
Brude v. Treutman, 16 Ind. App. 512; 44 N. B. 932.
67. Christie v. Bridgman, 51 N. J. Eq. 331; 25 Atl. 930; 80 Atl. 429.
Orr v. Rode, 101 Mo. 387; 18 S. W. 1066.
Jennings v, Rickard, 10 Colo. 395 ; 15 Pac. 677.
Nlcodemus v. Young, 90 la. 423 ; 57 N. W. 906.
Small v. Cohen, 102 Ga. 248; 29 S. E. 430.
Davis v. Davis, 20 Oreg. 78 ; 25 Pac. 140.
Tex., Etc., Ry. v. Comstock, 83 Tex. 537 ; 18 S. W. 946.
Lockhart v. Fessenich, 58 Wis. 588 ; 17 N. W. 302.
Barstow v. McLachlan, 99 111. 641.
And see numerous cases from practically every state cited In
13 Am. & Eng. Enc. P. & P. 181.
STATUTE OP LIMITATIONS 226
Statute of Limitations, unless pleaded, like the
prayers of the wicked, availeth not"68. In some
states it is held that if it is apparent on the face of
the complaint that the debt is barred by the statute,
an objection to the evidence will be effective, but if it
does not appear on the face of the complaint, it must
be specially pleaded69. But the general rule requires
the question in either event to be presented through
the pleadings70 ; it cannot be taken advantage of un-
der the general issue or a general denial71, nor for
the first time at the trial72, nor on arrest of judg-
ment73, nor at any time after judgment74.
B. IN CRIMINAL OASES:— Sec. 226. A
plea of not guilty in a criminal action puts every-
thing in issue75. Therefore, the rule obtaining in
civil actions that the statute of limitations, to be
available as a defense, must be specially pleaded,
does not apply. And while the defendant, if the in-
dictment shows the prosecution to be barred by lim-
itation, may raise the question of the statute by
68. Per Judge Neill in P. & O. Tex. Ry. v. Crews, 139 S. W. 1049,
Tex. Civ. App. ; mentioned in West Pub. Co.'s "Docket," De-
cember, 1911, p. 596.
69. Mitchell v. Ripley, 5 Kans. App. 818 ; 49 Pac. 153.
Zane v. Zane, 5 Kans. 134.
70. State v. Spencer, 79 Mo. 314.
Thompson v. Parker, 68 Ala. 3oo.
Whitworth v. Pelton, 81 Mich. 98; 45 N. W. 500.
Vore v. Woodford, 29 Oh. St. 245.
tl. Retzer v. Wood, 109 U. S. 185.
Bell v. Clark, 30 Mo. App. 224.
Williams v. Barnett, 52 Tex. 130.
Bullett v. Stewart, 3 B. Mon. 115 (Ky.).
T2. Frantz v. Company, 5 Idaho 71; 46 Pac. 1028.
T8. Cooksey v. Ry., 17 Mo. App. 132.
Sawyer v. Boston, 144 Mass. 470; 11 N. E. 711.
Allen v. Word, 6 Humph. 284 (Tenn.).
74. Clinton v. Eddy, 54 Barb. 54.
76. Thompson v. State, 54 Miss. 740.
226 THE LAW or WAIVES
special plea, advantage may also be taken of this
defense under the general issue76. But if the bar
of the statute be not taken advantage of at the trial
before verdict, it will be waived and the sentence
cannot 'be called in question on that ground on
habeas corpus or on appeal77.
W. U. S. v. Cook, 17 Wall. 168 (TJ. S.).
State v. Gill. 33 Ark. 129.
Hatwood v. State, 18 Ind. 492.
Com. v. Ruffner, 28 Pa. St. 260.
Tf. Johnson v. U. S., 3 McClean 89 (U. B.).
COBPORATIONS 227
CHAPTER 11.
CORPORATIONS.
Section
1. CONDITIONS AND IRREGULARITIES IN SUB-
SCRIPTIONS—
A. Conditional Subscriptions —
(1) In general 227
(2) That all stock be subscribed 229
(3) Miscellaneous conditions 232
B. Irregularities In Subscriptions —
(1) In general 233
(2) Fraud and misrepresentation 237
1. BY-LAWS AND CORPORATE MEETINGS —
A. By-Laws 235
B. Corporate Meetings 241
S. ASSESSMENTS AND FORFEITURE OF SH AIRES —
A. Waiver As Applied To Assessments 245
B. Forfeiture Of Shares 246
4. TRANSFER OF STOCK, AND LIEN ON SHARES —
A. Transfer Of Stock 249
B. Waiver of Lien On Shares 2'53
*, RIGHT OF STATE TO CANCEL CHARTER. . 268
1. CONDITIONS AND IRREGULARITIES IN SUB-
SCRIPTIONS:
A. Conditional Subscriptions —
( 1 ) IN GENERAL :— Sec. 227. On the organ-
ization of a corporation a subscriber may agree to
take shares therein upon conditions to be performed
by the corporation. And where there are conditions,
the agreement does not become effective until they
are performed. When they are conditions prece-
dent, upon failure to comply therewith, or, rather,
228 THE LAW OF WAIVER
until compliance therewith, no liability attaches to
the subscriber. In fact the subscription is but a pro-
posal to take a number of shares thereafter if cer-
tain facts exist, and is not an absolute promise to
pay therefor. The corporation cannot levy an as-
sessment upon such shares before the conditions are
removed. It has been said that a conditional sub-
scription involves two contracts, one on the part of
the corporation to do some specified act, and the
other on the part of the subscriber to pay for his
shares when such act is performed ; and that the con-
ditional subscription is a continuing offer which be-
comes effective only upon acceptance by the corpor-
ation, which is evidenced by the performance. But
after such acceptance the offer cannot be revoked.
Sec. 228. But performance of the condition of
a subscription for stock is not always requisite to
render the contract enforceable. The subscriber is
not bound to insist upon it. He has the right to do
so but may waive the right, or, in other words, may
forego its benefits. But in order that a valid waiver
of performance of conditions may occur, the sub-
scriber must have knowledge of his rights and must
forego them voluntarily, or the circumstances sur-
rounding his dealings and his conduct in the prem-
ises must be such that an intent not to insist upon
the rights may be inferred, as a waiver may be either
express or implied ; and even silence may constitute
a waiver if a duty rests upon the subscriber to speak,
or if his silence misleads others to their prejudice.
(2) THAT ALL STOCK BE SUBSCRIBED:—
Sec. 229. A common condition inserted in the agree-
ment of subscription upon the organization of a cor-
poration is that there shall be a certain number of
CORPORATIONS 229
shares of the capital stock and that a designated
sum shall be paid for each share. And in other in-
stances statutory provisions require a definite num-
ber of shares to be subscribed and a certain part of
the capital stock to be paid in. In either event, the
stipulation or requirement must be fulfilled or the
subscription does not become effectual so that pay-
ment thereof can be enforced.
Sec. 230. But these provisions or conditions
are solely for the benefit of the subscriber and he
has the right to take advantage of them or not as he
may desire. He may rely upon them as a defense
in an action upon the subscription, or he may so de-
clare or conduct himself as to preclude such defense.
In other words, he may waive the performance of
such conditions and in such event will be held to pay-
ment of the amount subscribed78. A variety of facts
and circumstances have been held to amount to a
waiver of the conditions under consideration. Thus,
if a subscriber to stock in a corporation subscribed
prior to incorporation, he waives the defense that
the capital stock of the corporation has not been sub-
scribed as provided for in his contract by acquiesc-
ing in the mode of incorporation with knowledge of
all the facts79. Or, if he know that the whole amount
of the capital stock has not been subscribed, yet par-
ticipate in a corporate meeting, the condition is
waived and the subscription rendered absolute80.
78. MacFarland v. West. Assoc., 56 Neb. 277; 76 N. W. 584.
79. Cal. Hotel Co. v. Callender, 94 Cal. 120; 29 Pac. 859; 28 A. S.
R. 99, citing:
Cook on Stocks & Stockholders, Sees. 181-198.
Taylor, Private Corporations, Sec. 519.
N. H. Ry. Co. v. Johnson, 30 N. H. 390 ; 64 A. D. 300.
80. Inter. Assoc. v. Walker, 97 Mich. 159; 56 N. W. 344.
230 THE LAW OF WAIVER
And the same effect results where he acts as a di-
rector of the corporation or as a member of its com-
mittees81; and likewise if he attend meetings, vote
for expenditures, or for making contracts, and do
other acts which could be consistent only with an in-
tention to proceed with his subscription and shares
as if all the conditions had been complied with, a
waiver will be imputed to him82. And it is the same
where he pays calls on shares88. The assisting in
prosecuting the enterprises for which the corpora-
tion was formed and in the incurring of liabilities,
knowing that the required amount has not been sub-
scribed, is a waiver by the subscriber of the condi-
tion84. So, the making of payments, promising to
pay, giving his note or other obligation as payment
will have the same result85. And if, at the time of
the subscription, the corporation has already com-
menced business, the subscriber will be held to have
waived the conditions as to all stock's being taken
if he knew at the time that it had not been86. In
general it has been said that any acts done by the
subscriber, either as a corporator or as a director,
which evince a willingness on his part that the cor-
\
81. Auburn Assoc. v. Hill, 32 Pac. 587 (Cal.).
Richfield Co. v. Reynolds, 46 Conn. 376.
82. Hager v. Cleveland, 36 Md. 476.
Cabot, etc. Bridge v. Chapin, 6 Gush. 53.
See: N. H. Ry. Co. «. Johnson, 30 N. H. 390; 64 A. D. 300.
Lane v. Bralnerd, 30 Conn. 565.
Morrow v. Nashville Co., 87 Tenn. 262 ; 10 S. W. 495 ; 3 L. R.
A. 37.
83. Cal. Hotel Co. v. Callender, 94 Cal. 120; 29 Pac. 859; 28 A. S.
R. 99.
84. Hutchlns v. Smith, 46 Barb. 235.
Reformed Church v. Brown, 17 How. Pr. 287.
85. Chamberlain v. Painesvllle, 15 Oh. St. 225.
86. Musgrave v. Morrison, 54 Md. 181.
CORPORATIONS 231
poration should enter upon its business with no
more stock than already subscribed, will amount to
a waiver of the condition that payment of his sub-
scription cannot be required until the whole capital
stock is subscribed87.
Sec. 231. It has been held, however, that pay-
ment of part of a subscription is not a waiver of
performance of this condition88; but this conclusion
cannot be reasonably maintained if at the time of
such payment the subscriber knows how much of the
stock has been taken89. And it has been said that if
a subscriber consent to and waive notice of a stock-
holders' meetings, and vote at special meetings, such
conduct does not amount to a waiver of compliance
with the condition, if he is ignorant of existing
facts90.
(3) MISCELLANEOUS CONDITIONS:— Sec.
232. The charter of a corporation required that at
the time of subscription the subscriber should pay
a certain sum on each share. It was held that he
87. 1 Thompson, Corporations, Art. 1242, citing:
Masonic Temple As. v. Channell, 43 Minn. 353 ; 45 N. W. 716.
See: Detroit Club v. Fitzgerald, 109 Mich. 670; 67 N. W. 899.
88. Gettysburg Bank v. Brown, 95 Md. 367; 62 Atl. 975; 93 A. S. R.
339.
Sohloss v. Montgomery Co., 87 Ala. 411; 6 So. 360; 13 A. S.
R. 51.
Pittsburgh Ry. v. Stewart, 41 Pa. St. 54.
But, see: Klein v. Alton, etc. Ry., 13 111. 514.
89. Johnson v. Schar, 9 S. Dak. 536 ; 70 N. W. 838.
90. Fairview Co. v. Spillman, 23 Oreg. 587 ; 32 Pac. 688.
But it is otherwise if, with knowledge of the facts, he act*
as an officer of the corporation, pays the whole subscription,
or gives an absolute promissory note therefor ; See :
Lane v. Brainerd, 30 Conn. 565.
Parks v. Evansville Ry., 23 Ind. 567.
Slipher v. Earhart, 83 Ind. 173.
Chamberlain v. Painesville Ry., 15 Oh. St. 226.
232 THE LAW OF WAIVER
could not take advantage of the failure to require
the actual payment of his part if he subsequently
made payment thereon before any calls for install-
ments were made91. And the same result was held
against him where he paid a judgment rendered for
the amount of the required payment92. And it is a
rule generally applicable that any condition attached
to a subscription for shares which is precedent to a
right of the corporation to require payment for such
shares is a defense to an action for the recovery
thereof prior to performance of such condition. But,
whatever the condition, it may be waived by him who
is entitled to insist upon it ; and any declaration or
conduct will amount to a waiver if it be inconsistent
with a reliance upon the condition. And when the
subscriber so conducts himself or declares as to
waive performance of the conditions upon which his
subscription was made, he will be compelled to pay
for the agreed shares the same as if no condition had
ever been attached.
B. IRREGULARITIES IN SUBSCRIPTIONS —
(1) IN GENERAL:— Sec. 233. Frequently
cases arise of irregularities in the issuance of shares
of stock to a subscriber which, in the absence of any
further facts of excuse or of an exonerating nature,
are insufficient to render the subscription nugatory
and to release the subscriber from liability therefor ;
or it may be that no subscription for shares has been
91. Harrington v. Miss. Co., 32 Miss. 370.
•2. Hall v. Selma Ry. Co., 6 Ala. 741.
See: Pittsburg Ry. Co. v. Applegate, 21 W. Va. 172.
Klein v. Alton Ry. Co., 13 111. 514.
Blair v. Rutherford, 31 Tex. 465.
Beach v. Smith, 28 Barb. 254.
CORPORATIONS 233
made at all, and yet an attempt made to hold a party
to the duties and liabilities of a regular shareholder.
In either event the one upon whom liability is sought
to be fixed has the right to rely upon the irregularity
or the absence of any formal subscription to release
him from any ostensible liability.
Sec. 234. But a party cannot rely upon such
right of exemption from the responsibilities of a
shareholder and at the same time occupy a position
with reference to the corporation or so conduct him-
self as to mislead others into • an honest belief that
he is regularly a shareholder. Such position or con-
duct will have the effect of waiving any irregulari-
ties as to the subscription, and will place the burdens
as well as the rights squarely upon his shoulders.
Sec. 235. Thus, a subscription should be in
writing, but the fact that it is not may be waived by
conduct fairly inducing the belief that it is regular93.
The serving as a director in the corporation is such
conduct as will produce this result94. And where the
rights of creditors are concerned, this is especially
true, for as between shareholders in the same con-
cern, each is presumed to know the standing of the
others and the methods by which they came into the
corporation, but strangers to the concern, or those
who deal with it other than as members, are entitled
to rely upon the conduct of a party or his ostensible
relations with the corporation, or, in other words,
upon appearances produced by his own conduct or
93. Kans. City Hotel Co. v. Hunt, 67 Mo. 126.
Upton v. Tribilicock, 91 U. S. 45.
Phoenix Co. v. Badger, 67 N. T. 294; 6 Hun 293.
•4. Lane v. Brainerd, 30 Conn. 565.
234 THE LAW or WAIVER
acquiescence, as to whether he is a shareholder or
not; and if his conduct is misleading, even though
his subscription be irregular, the irregularity will
be held waived95. And more especially is it true that
serving as a director in a corporation is a waiver of
irregularities in subscriptions if the by-laws require
that only shareholders may be directors; and the
same is true if he holds any other office in the cor-
poration96.
Sec. 236. Where the charter required the first
installment of stock subscribed for to be paid at the
time of subscription, it was held that by subsequent-
ly acting in the organization of the company a sub-
scriber waived the irregularity that the installment
was paid by note instead of in cash as required by
the charter97. So, failure to make a required cash
deposit is held waived by an acceptance of shares of
stock and a subsequent sale or transfer of them98;
for such is an affirmance of the subscription contract
rather than a disavowal of it. It will thus be seen
from an examination of the cases that any act of the
subscriber will be sufficient to waive an irregularity
in his subscription if it evidence an intention on his
part to treat the contract as binding, or at least show
his willingness to abide by it with all the duties and
85. Ruggles v. Brock, 6 Hun 164 (N. T.).
Rutz v. Esler Mfg. Co., 3 111. App. 88.
96. Haynes v. Brown, 36 N. H. 645.
Convith v. Culver, 69 111. 502.
Young v. Vough, 23 N. J. Eq. 325.
Hays v. Pittsburgh Ry., 38 Pa. St. 81.
97. Greenville Ry. v. Woodsldes, 5 Rich. Law (S. C.) 145; Si
A. D. 708.
98. Everhart v. Westchester Ry., 28 Pa. St. 339.
CORPORATIONS 236
liabilities it imposes". Therefore, such waiver is
inferred where the subscriber pays for one of the
shares irregularly issued100, or pays calls on all his
shares1, receives dividends2, attends and votes,
either in person or by proxy, at corporate meetings3,
and accepts and holds certificates of stock issued
pursuant to such subscriptions4. And the same re-
sult follows where he helps to frame the by-laws
under which assessments are levied5. And it was
held that by voting for managers the subscriber
waived an omission of the payment of five dollars
per share at the time of subscription, which payment
•was required by the act of incorporation6.
(2) FRAUD AND MISEEPEESENTA-
TION:— Sec. 237. The effect of fraud or mis-
representation practiced upon a subscriber for
shares in a corporation is the same as that in-
ducing any other contract. It renders the contract
not void but voidable; and until it is rescinded by
the subscriber in some appropriate manner it re-
mains binding upon him. Not only this, he must be
89. Rice v. Rock Island Co., 21 111. 93.
City Bank v. Bartlett, 71 Ga. 797.
McCully v. Pittsburgh Ry., 32 Pa. St. 25.
Chaffln v. Cummings, 37 Me. 76.
Chubb v. Upton. 95 U. S. 665.
Hunt v. Ka.ua. Co., 11 Kans. 412.
Meadow v. Gray, 30 Me. 547.
100. Bell's Appeal, 115 Pa. St. 88; 8 Atl. 177.
1. Inter-Mountain Co. v. Jack, 5 Mont. 568 ; 6 Pac. 20.
Maltby v. Ry. Co., 16 Md. 422.
2. Duffleld v. Barnum Co., 64 Mich. 293 ; 31 N. W. 31«.
8. Rockville Co. v. Van Ness, 2 Cranch C. C. 449.
Buffalo Ry. Co. v. Gifford, 87 N. Y. 294.
4. Clarke v. Continental Co., 57 Ind. 135.
McLouKhHn v. Detroit Co., 8 Mich. 100.
6. Williamette Fr't'g. Co. v. Stannus, 4 Oreg. 261.
6. Clark v. Navigation Co., 10 Watts. 364 (Penn.).
236 THE LAW OF WAIVER
diligent in discovering the fraud, and must there-
upon act promptly in repudiating the subscription,
or by his acquiescence he will 'be held to have elected
to ratify the contract or to have waived the fraud or
misrepresentation, and thereupon he will be bound
as if the contract had never been tainted.
Sec. 238. In the subject under consideration
any act of ratification of the contract of subscription
is the same thing as a waiver of fraud or misrepre-
sentation in its inducement. And if the subscriber,
with full knowledge of the matter, act in a manner
inconsistent with an intention to disaffirm the con-
tract, he will thereafter be precluded from escaping
his obligations thereunder, and must abide by its
terms7. Thus, if he act as a shareholder after dis-
covering the fraud8, he will not be heard to question
the binding effect of the contract; nor will he if he
interpose no objections while the corporation is be-
ing organized9 ; nor where he pays assessments, acts
as an officer, votes for expenditures, accepts divi-
dends, or does any other act recognizing the continu-
ing validity of the contract10, such as participating
in a meeting of stockholders, selling part of his
shares, or authorizing his broker to sell them11.
7. Berthold v. Goldsmith, 24 How. 536 (U. S.).
Winship v. Bank of U. S., 5 Pet. 562 (U. S.).
3. City Bank v. Bartlett, 71 Ga. 797.
t. Beck v. Henderson, 76 Ga. 360.
10. Hays v. Pittsburgh Ry., 38 Pa. St. 81.
Frost v. Walker, 60 Me. 468.
Miss. Ry. Co. «. Harris, 36 Miss. 17.
Phila. Ry. Co. v. Cowell, 28 Pa. St. 329 ; 70 A. D. 128.
Schaeffer v. Mo. Home Ins. Co., 46 Mo. 248.
Chubb v. Upton, 95 U. S. 667.
City Bank v. Bartlett, 71 Ga. 76.
11. Chaff in V. Cummings, 37 Me. 76.
COBPOKATIONS 237
2. BY-LAWS AND CORPORATE MEETINGS:
A. BY-LAWS :— Sec. 239. A by-law is a rnle
pf conduct adopted for the regulation of the internal
affairs of a corporation ; in other words, it is a pri-
yate statute or law by which the shareholders have
agreed to be governed. But it does not necessarily
follow that an act done contrary to the by-laws is
void. The by-laws may be waived by the assent of
the shareholders12. But it has been said that the
officers of a mutual company have no authority to
waive by-laws adopted by the members unless power
to do so has been expressly given them, as the by-
laws are, in effect, a contract among the members1*.
But, on the contrary, it has been held that mutual
insurance companies have power to waive provisions
of their by-laws which have been introduced for
their benefit and protection14. And it has been said
that a by-law is not a limitation and restriction of
the power which is lodged by the charter of a cor-
poration in the board of directors, and can have no
Mgher effect in this respect than instructions or a
general regulation adopted by the directors them-
selves as a convenient guide as in ordinary cases15.
Sec. 240. It will be seen that questions of
Waivers of by-laws occur more frequently in in-
12. Supreme Tent v. Volkert, 25 Ind. App. 627; 57 N. E. 201.
Wiberg v. Minn. Etc. Co., 73 Minn. 297 ; 76 N. W. 37.
Underbill v. Santa Barbara Co., 93 Cal. 300 ; 28 Pac. 104».
Currier v. Continental Co., 53 N. H. 538.
13. Evans v. Tri-Mountain Co., 9 Allen 329 (Mass.).
Behler v. German Ins. Co., 68 lad. 347.
Westchester Co. v. Earle, 33 Mich. 143.
14. Union Mut. Co. v. Keyser, 32 N. H. 313; 64 A. D. S75, citing:
Angell on Insurance, Sec. 242.
Heath v. Franklin Ins. Co., 1 Gush. 257 (Mass.).
15. Campbell v. Merchants Co., 37 N. H. 35 ; 72 A. D. 224.
23S THE LAW OF WAIVER
surance cases than in any other. And in such cases
the general rule is that as between the insurer and
the insured a by-law is for the benefit of the former
and may be waived by it; and any conduct incon-
sistent with a reliance upon it may amount to such
waiver. Thus, where certain insurance was prohib-
ited by the by-laws of a mutual insurance company,
the issuance of such a policy was held a waiver of
the by-laws16; likewise, where there was an accept-
ance of payment in a manner different from that
provided for17; and, again, where the company
failed to furnish proper blanks for proofs of death
upon receipt of notice thereof, the requirement of
proof was thereby waived18. And an insurer waives
the benefit of a by-law providing for the authoriz-
ing and commissioning of an agent if it directs the
agent to deliver a policy and receive the premium19.
The policy is not void even though it may have been
issued contrary to a by-law ; for the very fact of its
having been issued in violation of such by-law is a
waiver of it20.
B. COBPORATE MEETINGS :— Sec. 241.
The by-laws of a corporation provide the manner in
which its members or directors shall be assembled
for the transaction of corporate business ; and under
such provision the assemblage must be in the man-
ner designated. It matters not that a majority were
16. Welling v. Eastern Assoc., 56 S. Car. 280; 34 S. E. 40».
17. National Lodge v. Jung, 65 111. App. 318.
18. Order Friends v. Austerlltz, 75 111. App. 74.
18. Susquehana Co. v. Elklns, 124 Pa. St. 484; 17 Atl. 24; 10 A.
S. R. 608.
St. Campbell v. Merchants Co., 37 N. H. 35; 72 A. D. 324.
Fitzgerald v. Equit. Assoc., 3 N. Y. Supp. 214.
International v. Abbott, 85 Tex. 320; 20 S. W. 118.
CORPORATIONS 239
present at an irregular meeting and joined in the
transaction of business, for, as has been said, a mi-
nority has the right to have a meeting properly and
lawfully assembled, to be present at it and take part
in all business of the corporation, and to have an op-
portunity to convince the majority, if possible, to
their position; and unless they have the procedure
regularly followed, they have the right to avoid any
action taken at such meeting.
Sec. 242. But the irregularity of the meeting
may be waived, although it requires concerted ac-
tion of all the members to accomplish this result.
Thus, where a meeting is held without the required
notice, the want of such notice is waived if the stock-
holders appear without such notice and take part or
acquiesce in the action taken at such meeting21. The
principle here involved is analagous to that of ser-
vice of process in a civil suit where, if the defendant
enter a general appearance therein under a defective
summons or service thereof, or even without any
process at all, he is bound to the same extent as if
legally served with such process22. And in the case
of members or stockholders of a corporation, it is
said that by attendance at meetings they admit due
notice23. And the same is true of strict statutory re-
quirements of notice, for this is for the benefit of the
21. Kenton Co. v. McAlpine, 5 Fed. 737.
Jones v. Milton Co., 7 Ind. 547.
Richardson v. Vermont Co., 44 Vt. 613.
Bryant v. Goodnow, 5 Pick. 228 (Mass.).
Union Pac. Co. v. Chicago, Etc. Co., 51 Fed. 309.
Nelson v. Hubbard, 96 Ala. 238 ; 11 So. 248.
Bucksport, Etc. Co. v. Buck, 68 Me. 81.
Handley v. Stultz, 139 U. S. 417 ; 11 Sup. Ct. R. 530.
22. Judah v. Am. Ins. Co.. 4 Ind. 333.
23. People v. Peck, 11 Wend. 604 ; 27 A. D. 104.
240 THE LAW OF WAIVER
stockholders and may be waived by them by attend-
ance and participation in the meetings and acquiesc-
ence in the things done; and even if some did not
attend and take part in a meeting, they waived the
want of proper notice by subsequent acts of ratifi-
cation of the things done24. It must be noted, how-
ever, that to constitute a waiver of irregularities in
the calling of a meeting of directors or stockholders,
it is essential that they meet together and act as a
body if participation in the things done is to be relied
upon as a waiver. Their consent to a course of pro-
cedure, obtained at different times and places, will
not dispense with the necessity of calling the meet-
ing properly. Such is only the acts of individuals
and not that of the body25. The irregularity of a
call is also waived if no objection is made for an
unreasonable time, for silence in such case is a rati-
fication of the action taken26.
Sec. 243. But contrary to the foregoing doctrine,
it has been held that any action taken by a quorum
of the directors of a corporation is binding upon the
corporation whether the other members were noti-
fied or not and whether the meeting was for the
transaction of general or special business27. And it
24. Benbow v. Cook, 115 N. Car. 324; 20 S. E. 453; 44 A. S. R. 454.
citing :
1 Cook on Stock & Stockholders, Sec. 599.
Stultz v. Handley, 41 Fed. 531.
Campbell v. Hubbard, 96 Ala. 238; 11 So. 428.
25. Duke v. Markham, 105 N. Car. 131; 10 S. E. 1017; 18 A. S. R.
889.
Cited in Benbow v. Cook, 115 N. Car. 324; 20 S. E. 453; 44 A.
S. R. 454.
Baldwin v. Canfield, 26 Minn. 43 and 65 ; 1 N. W. 261 and 585.
Pierce v. N. O. Bldg. Co., 9 La. 397; 29 A. D. 448.
26. Weinburgh v. Union Co., 55 N. J. Eq. 640; 37 Atl. 1026.
27. Edgerly v. Emerson, 23 N. H. 555; 55 A, D. 206.
CORPORATIONS 241
is said that by virtue of the provisions of the stat-
utes in the New England states, especially relating
to town meetings, that the courts of those states re-
quire a faithful observance of the requirement as to
the notice of meetings ; and that the notice is not
waived or dispensed with by the voluntary attend-
ance and participation in the business of the meet-
ing28.
Sec. 244. But the better reason, and the major-
ity of courts, support the theory that a waiver of
notice or irregularities in the meetings occurs where
the directors all meet together and either join in the
action taken, or assent thereto, or subsequently by
their acts or acquiescence ratify the action taken29.
And the same doctrine obtains if the meeting is of
the stockholders.
3 . ASSESSMENTS AND FORFEITURES OF SHARES :
A. WAIVER AS APPLIED TO ASSESS-
MENTS : — Sec. 245. An Assessment, as applied to
corporations, differs from a Call only in being a
broader term in that while a Call is the resolution
t/f the board of directors declaring payable all or
a portion of the unpaid subscriptions, an Assesa-
28. Hayward v. School Dist., 2 Gush. 419.
Moor v. Newfield, 4 Me. 44.
Bethany v. Sperry, 10 Conn. 200.
Bloomfield v. Bank, 121 U. S. 121.
Jordan v. School Dist., 31 N. H. 304.
All cited In 1 Thompson on Corporations, Art. 718.
St. Mut. Ins. Co. v. Farquhar, 86 Md. 668 ; 39 Atl. 527.
Sampson v. Steam Mill, 36 Me. 78.
Atl. Mut. Co. v. Sanders, 36 N. H. 252.
State v. Conklin, 34 Wis. 21.
Warner v. Mower, 11 Vt. 385.
Stobo v. Davis Co., 55 111. App. 440.
Minneapolis Co. v. Nimrocks, 53 Minn. 381 ; 55 N. W. 54«.
242 THE LAW OF WAIVEB
ment may mean also a demand for payment
above the par value of shares in order to meet the
obligations of the corporation30. And the irregular-
ity of an assessment, as between the corporation and
a shareholder, is sufficient to release the latter from
payment unless he has by his conduct precluded him-
self from setting up the irregularity. Such irregu-
larity may be waived by him, and it will be held to
apply if, by his conduct, he shows an intention not
to rely upon it. This intention may be inferred if
the shareholder participate in a meeting called for
organization, accepts a directorship, assists in fram-
ing the by-laws under which the assessment is lev-
ied, or votes for its adoption, provided, of course,
he knows at the time of the irregularity31. And the
same is true if the conduct relied upon as a waiver
be in effect a ratification of the irregular act32.
But it has been held that where a city voted to
pay a call, such vote did not waive irregularities in
the call38, and that where part of a subscription was
paid such payment did not waive the right to require
proper calls to be made for the remainder of the sub-
scription34.
B. FORFEITURE OF SHARES :— Sec. 246.
The authority of a corporation to declare stock for-
feited for non-payment of calls or assessments and
to sell same for such payment does not exist as a
30. 1 Purdy's Beach on Private Corporations, Art. 303.
31. Willamette Co. v. Stannus, 4 Oreg. 261.
Bucksport Co. v. Buck, 68 Me. 81.
Clark v. Navig. Co., 10 Watts. 364 (Pa.).
32. Grabner v. Post, 96 N. W. 783 (Wis.).
33. Pike v. Bangor Ky. Co., 68 Me. 445.
34. Groose Co. v. I'Anson, 43 N. J. L. 442.
COEPOKATIONS 243
common-law method, but is conferred only by stat-
ute. And when the power is given, the statutory pro-
vision must be strictly complied with. And it must
further be exercised without unreasonable delay ; for
if before the forfeiture should be declared the stock-
holder tender the amount due, the default will be
cured. And it has been held in at least one case35
that where the power to sell for non-payment is giv-
en it must be exercised as each call is made, and that
failure to sell for each call will be a waiver of the
right to take advantage of the statute at all. But
this is contrary to good reason and to all principles
upon which the doctrine of waiver is based, and the
opposite has been held36.
Sec. 247. And where the statutory forfeiture
exists, the corporation must elect between that mode
of enforcing payment and the right to sue the stock-
holder directly for the amount due. For under the
law regulating the election of remedies, proceeding
under one method is a waiver of the other37. But
of course either remedy may be pursued, and the cor-
poration may waive the statutory right to declare the
shares forfeited and sue in assumpsit38. And the
waiver is entire as to each remedy, for the corpora-
tion cannot sell the shares under the forfeiture stat-
35. Stokes v. Lebanon Co., 6 Humph. 241, cited In:
Purdy's Beach, Priv. Corp. 323 (C).
36. Brockenbrough v. James R. Co., 1 Patt. & H. 94 (Va.).
37. Macon Ry. Co. v. Vason, 57 Ga. 314.
Kermebec Ry. Co. v. Kendall, 31 Me. 470.
Rutland Ry. Co. v. Thrall, 35 Vt. 536.
Macauley v. Robinson, 18 La. Ann. 619.
Mills v. Stewart, 41 N. Y. 384.
88. Alkali Co. v. Campbell, 113 Fed. 398.
Campbell v. American Co., 125 Fed. 207.
244 THE LAW OF WAIVES
ute, and then sue the shareholder in an action for
the unpaid balance39.
Sec. 248. But as has been noted, the method
prescribed by statute must be strictly followed where
shares of stock are to be forfeited and sold for non-
payment of calls or assessments; and in case of ir-
regularities in pursuit of such method, the share-
holder has the right to enjoin the sale or he may have
it set aside after it is made. In such event the for-
feiture and consequent sale are not void but void-
able ; and both the shareholder and the corporation
may by their conduct waive the irregularities and
validate the proceeding. Thus, it has been held that
acquiescence in what has been done may constitute
such waiver40. And this is especially true if the ac-
quiescence continue for a long or unreasonable time
after knowledge of the irregularity or particular
facts rendering the forfeiture voidable. To say this
is but a reiteration of the well-established principle
that a party must take prompt action to maintain his
rights in a matter wherein his non-action might mis-
lead innocent parties into actions which they other-
wise might not pursue, or might cause them to act
to their disadvantage.
4. TRANIST?TEfR OF STOCK AND MEN ON SHARES:
A. TRANSFER OF STOCK : -Sec. 249. The
usual requirement as to transfer of a stockholder's
interest in a corporation is that the transfer shall
89. Mechanic's Co. v. Hall, 121 Mass. 272.
Allen v. Montgomery Ry. Co., 11 Ala. 437.
Small v. Herkimer Co., 2 N. T. 330.
Athol Ry. Co. v. Prescott, 110 Mass. 213.
40. Kennebec Ry. Co. v. Kendall, 31 Me. 470.
COEPOEATIONS 245
not be valid or effective until it is made on the books
of the corporation. This is usually provided by
statute or the charter or is one of the by-laws of the
concern. The provision is for the benefit of the cor-
poration, and, more particularly, for the protection
of third parties or creditors, and it does not mean
that a transfer or sale of shares without a transfer
thereof on the books is absolutely illegal. The shares
are property and the rights of property are
vested in the owner so that he may, as an incident
of the right of property, transfer them the same as
any other property; and as between him and his
transferee, all of his rights may be divested without
the formal transfer of the shares on the books of the
company41 and the transaction have all the effect and
validity of a strict compliance with formalities. It
has been held that a corporation has the right to re-
gard a transferee of stock as the legal owner there-
of42. And there is also a rule that a corporation,
acting in good faith and without notice of the rights
of others, may treat registered shareholders as the
actual owners of shares standing in their names. But
it has been said that this latter rule is applicable to
only such transactions as are within the express or
implied powers conferred upon the corporation or
its shareholders. Corporate powers, common to all
stockholders, may usually be exercised by a reg-
41. Lund v. Wheaton Co., 50 Minn. 36; 52 N. W. 268; 36 A. S. R.
623.
Boston AE.SOC. v. Gary, 129 Mass. 435.
Hoppin v. Buffum, 9 R. I. 513 ; 11 A. R. 291.
Johnston v. Loflln, 103 U. S. 800.
And numerous cases cited In 2 Thomp. Corp., Sec. 2389.
42. Supply Ditch Co. v. Elliott, 10 Colo. 327; 16 Pac. 691; 3 A. S.
R. 586.
246 THE LAW OF WAIVER
istered shareholder though he has assigned all his
shares, and his action will bind his assignee holding
under an unregistered transfer, and all others. Pur-
chasers are bound to know that such powers may be
exercised by their assignors until the stock is regis-
tered in their names. But the assignee of shares,
having possession of the certificates, though holding
under an unregistered transfer, is not bound by con-
tracts between the registered shareholder, the cor-
poration and all other shareholders which are not
within the express or implied powers of corporations
or of their shareholders43.
Sec. 250. But, while the corporation has the
right to regard and treat him as the owner of shares
whose name appears as such on its books, yet it is
not compelled to do so, and may, despite irregulari-
ties or defects in the transfer, or non-compliance
with requirements as to transfer, so deal with the
transferee or recognize him as to render him a share-
holder for all purposes. In such event the irregu-
larities or informalities are deemed to have been
waived by the corporation44. And if such recogni-
tion and treatment of the transferee by the corpora-
tion amount to a waiver by it, the same effect will be
imputed to the transferee if he assent thereto with
knowledge of the facts45. And while some courts do
not apply this principle in all its breadth46, no good
reason occurs to us why informalities and irregular-
43. Campbell v. Am. Zylonite Co., 122 N. T. 455; 34 N. Y. St. R. 38;
25 N. E. 853 ; 11 L. R. A. 596.
44. Am. Nat. Bank v. Oriental Mills, 17 R. I. 651 ; 23 Atl. 795.
45. Upton v. Burnham, 3 Biss (U. S.) 431; and second hearing
thereof, Id. 520.
46. Vale Mills v. Spalding, 62 N. H. 605.
Cormac v. Western Co., 77 la. 32 ; 41 N. W. 480.
COKPOEATIOTTS 247
ities in the transfer may not be waived by those hav-
ing a right to insist upon a strict compliance with re-
quirements, and thereby render the transferee en-
titled to recognition and to receive dividends as a
shareholder and at the same time to make him di-
rectly liable for future calls or assessments47.
Sec. 251. Thus, in a well-considered New York
case discussing whether the legal or equitable title,
or both passed by an assignment of certificates of
shares without formal transfer on the books of the
corporation, it was said to be settled by repeated ad-
judications that, as between the parties, delivery of
the certificates and assignment passed the entire
title, legal and equitable, notwithstanding that by the
terms of the charter or by-laws of the corporation
the stock is declared to be transferable only on the
books; that such provisions are intended solely for
the benefit and protection of the corporation, and can
be waived or asserted at its pleasure48. And when
such waiver has been made by the corporation, the
holder of the certificate becomes a shareholder as to
the corporation as well as to creditors49.
Sec. 252. Frequently a charter or by-law re-
quires that a transfer shall not be valid unless the
consent of the directors thereto be obtained. But
47. Bell's Appeal, 115 Pa. St. 88; 2 A. S. R. 532.
48. McNeil v. Bank, 46 N. T. 325; 7 A. R. 341, citing:
8th Ed. Angell & Ames, Corporations, Art. 354.
Gilbert v. Manchester Co., 11 Wend. 627.
N. T. Ry. Co. v. Schuyler, 34 N. T. 80.
And see: Black v. Zacharie, 3 How. 513 (U. S.).
But see: Union Bank v. Laird, 2 Wheat. 390 (U. S.).
Shipman v. Aetna Co., 29 Conn. 245.
Naglee v. Pac. Co., 20 Cal. 529.
49. Laing v. Burley, 101 111. 591.
248 THE LAW OF WAIVER
this consent need not be obtained in a formal man-
ner or at a formal meeting as it will be sufficient that
a majority of the directors assent to the transfer50.
And the requirement may be waived altogether, and
it is waived if the conduct of the corporation has
been sufficient in such matters to establish a custom
to admit assignees without action by the board ; and
in such cases a transfer without the sanction of the
board will be valid51.
B. WAIVER OF LIEN ON SHARES:— Sec.
253. The statutes of many states give to a corpora-
tion a lien on the shares of its members for any
amount in which the members may be indebted to it.
And where there is no such statute the lien may be
created by a by-law of the corporation, or an agree-
ment among the shareholders, or even by a course of
dealing establishing a custom52. But the lien must
be created in one of these manners, as it does not
exist at common law. The effect where such lien is
given is that the shares cannot be transferred till
the owner has satisfied his indebtedness to the cor-
poration, or if they be transferred, the vendee takes
them subject to such lien.
Sec. 254. But when a custom, agreement or by-
law is relied upon as creating a lien, positive action
is necessary to render it effective, for if the rights
of the corporation be not asserted in such cases, the
lien will be considered abandoned or waived and a
purchaser in such event will take the shares freed
from such lien. It is held, however, that mere ig-
50. Ellison v. Schneider, 25 La. Ann. 435.
51. Chambersburg Co. v. Smith, 11 Pa. St. 120.
52. 2 Purdy*s Beach on Priv. Corp., Sec. 488.
COKPORATIONS 249
norance of the vendee of the fact that a lien exists
on the shares has no effect as it could under no con-
struction be said to be a waiver by the corporation53.
And failure to assert a statutory lien is not a waiver
of it where notice of such lien appears on the certi-
ficate54. Nor is a waiver produced -by the taking of
a mortgage on other property to secure the indebted-
ness unless it clearly appears that soich was the in-
tention of the parties55. Of course, the lien may be
waived by looking solely to the personal credit of the
shareholder for payment of the indebtedness or re-
lying exclusively upon other security, but it must
clearly appear that payment was anticipated from
some source without reference to the shares of stock
or no waiver will be inferred56. And where the cer-
tificate recited that the holder was entitled to a cer-
tain number of shares transferable only upon sur-
render of the certificate, it was held that such pro-
vision was no waiver of the lien given the corpora-
tion on the shares for any indebtedness of the origi-
nal holder of it57.
Sec. 255. But a different condition exists where
the shares recite that they are fully paid up, and the
corporation as against a bona fide transferee at-
tempts to assert a lien thereon for an unpaid balance.
63. Hammond v. Hastings, 134 U. S. 401; 10 Sup. Ct. R. 727; 33
L. Ed. 960.
64. First N. Bank v. Hartford Co., 45 Conn. 22.
National Bank v. Watsontown Bank, 105 U. S. 217.
65. Union Bank v. Laird, 2 Wheat. 396 (U. S.).
Kenton Ins. Co. v. Bowman, 84 Ky. 430; 1 S. W. 717.
56. Jennings v. Bank, 79 Cal. 323 ; 25 Pac. 852 ; 12 A. S. R. 145.
67. Reese v. Bank, 14 Md. 271 ; 74 A. D. 536.
See: Cecil N. Bank v. Watsontown Bank, 105 U. S. 217.
Bishop v. Globe Co., 135 Mass. 132.
Kenton Ins. Co. v. Bowman, 84 Ky. 430.
250 THE LAW OF WAIVER
Here the purchaser of such shares boiys them as
fully paid for and without notice that they are not
paid for, and no implication of an agreement arises
to pay anything to the corporation for them, as there
are no facts from which such an implication can
arise. The recital on the face of the certificate is a
representation by the corporation or its officers that
a condition exists which they will not later be heard
to gainsay to the injury of an innocent holder58. In
other words, the right of the corporation to the lien
on shares for any indebtedness of the original holder
is waived by such representation. The same result
is produced by a statement on the certificate that it
is transferable59.
Sec. 256. And it has even been said that it is
the duty of the corporation to make the certificate of
shares show the exact claims it may have against the
shares for any unpaid balance from the original
holder, and especially if it claim a lien thereon by
reason of a by-law to that effect the certificate must,
as against an innocent purchaser, disclose this se-
cret lien or it will not be held effective. It is said
that the general policy of the law is against such se-
cret liens; and the corporation owes a duty to the
pu'blic to make known such a lien by printing a notice
thereof on its certificate or by other appropriate
means60. Unless some such notice be given, the cor-
58. West Nashville Co. v. Bank. 86 Tenn. 252; 6 S. W. 340; 6
A. S. R. 835.
Morawetz on Corporations, Sec. 161.
Cook on Stocks, Sees. 50, 257, 418.
59. Fitzhugh v. Bank, 3 T. B. Mon. 126 ; 16 A. D. 90.
60. 2 Thompson, Corporations, Arts. 2334 and 1680, citing:
Foreman v. Bigelow, 4 Cliff. 508 (U. S.).
Brant v. Ehler, 59 Md. 1.
Phelan v. Hazard, 5 Dill. 45 (U. S.).
CORPORATIONS 251
poration cannot hold a bona fide purchaser for value
for any unpaid balance on the shares61 ; nor will he
be liable to creditors therefor, it even being said that
it does not matter if the certificates are silent as to
whether or not the shares are paid for62. But Thomp-
son, in his work on corporations, states that the qual-
ification that there is nothing on the books of the cor-
poration to apprise one that the shares are not paid
for is very necessary to vindicate these holdings;
for he says that otherwise all that a subscriber who
might become sick of his bargain would have to do
in order to pay for his shares would be to sell them63.
But we cannot agree with the learned author where
the certificates recite that the shares are fully paid
for. Such recital, as before noted, amounts to a rep-
resentation to the truth of which the corporation
should be held. And while in the face of such a re-
cital the corporation may assert its lien as against
the original holder for a balance due on the shares,
to go farther and say that it may treat an innocent
transferee the same way, occurs to us as calculated
to produce gross injustice. It may be true, as the
author above mentioned says, that all that a sub-
scriber who might become sick of his bargain would
have to do to pay for his shares would be to sell
them. But it must be remembered that such a con-
dition is produced by the voluntary act of the cor-
poration in making the false statement as to such
shares being paid for, and for such act and repre-
sentation the corporation should suffer rather than
an innocent purchaser of the shares.
61. Keystone Co. v. McCluney, S Mo. App. 496.
Sprainka v. Allen, 76 Mo. 384.
62. Keystone Co. v. McCluney, supra.
63. 2 Thompson, Corporations, Art. 681.
262
Sec. 257. If the governing statute provide that
no transfer of shares shall be made while the holder
is indebted to the corporation, the provision is
waived and the right surrendered if the corporation
permit registration of the shares in the name of a
transferee without requiring payment of such in-
debtedness64. And the giving of further credit to a
shareholder with knowledge of a conflicting lien, is,
as to such other lien, a waiver by the corporation of
the lien allowed it by law65.
5. BIGHT OF STATE TO CANCEL CHAR-
TEE: — Sec. 258. The existence or non-existence,
as the case may be, of many facts or conditions will
give to a state the right to declare forfeited or to
cancel and annul the charter of a corporation or-
ganized under its laws. But this right belongs ex-
clusively to the state, and with it individuals have
nothing to do. Any breach of a condition upon
which the charter was granted, however, may be
waived by the state and the corporation continue
under the charter the same as if no breach occurred,
and thereafter the cause for forfeiture cannot be in-
sisted upon by the state66. This principle will be
applied where the corporation has been allowed or
compelled, by those chiefly interested, to proceed at
great expense under the franchise sought to be an-
nulled, for a considerable period of time 'while the
84. Cecil Bank v. Watsontown Bank, 105 U. S. 217.
Hill v. Pine Bank, 45 N. H. 300.
Hodges v. Bank, 7 Gill. 306 (Md.).
65. Nesmith v. Wash. Bank, 6 Pick. 324.
66. People v. Ulster Co., 128 N. Y. 240 ; 28 N. E. 635.
People v. Manhattan Co., 9 Wend. 361 (N. Y.).
Foster v. Joilet, 27 Fed. 899.
COBPOKATIONS 253
ground relied upon for a forfeiture was well known67.
And long delay in taking advantage of a ground for
forfeiture has been held sufficient to constitute a
waiver68. The question of waiver in this, as in most
other instances is one of intention which may be
evidenced by an act of the state legislature express-
ly remitting the penalty or recognizing the corpora-
tion after knowledge of the cause for forfeiture, or
by laches of the state in enforcing the forfeiture.
But it is said that mere good behavior of a corpor-
ation after the existence of grounds of forfeiture is
not a legal atonement69.
.Sec. 259. A charter required a certain sum to
be paid in within two years. The payment was not
made and the corporation operated its business for
seven years and it was held that by such delay and
acquiescence the state could not declare the forfeit-
ure of the charter on account of such non-payment70.
But the soundness of this doctrine has been denied71.
Another charter made it the duty of the corporation
to lay before the legislature at the end of every six
years after setting up any toll-gate, an account of
the expenditures and profits of the road under the
penalty of forfeiting the privileges of the act in the
future. But where the accounts were accepted by
the legislature after the time limited, it was held
that the right to declare a forfeiture of the charter
was waived72. And in the same case it was held that
67. State v. Janesville Co., 92 Wis. 496; 66 N. W. 512; 32 L. R. A.
391.
68. People v. Oakland Bank, 1 Dougl. 282 (Mich.).
69. People v. Fishkill Co., 27 Barb. 445.
70. People v. Oakland Bank, 1 Dougl. 282 (Mich.).
71. State v. Pawtuxet Co., 8 R. I. 521 ; 94 A. D. 123.
12. Scate v. Fourth Turnpike, 15 N. H. 162 ; 41 A. D. 690.
264 THE LAW OF WAIVER
the neglect to render the accounts was waived by a
subsequent act of the legislature authorizing the cor-
poration to change the route of its road. So, the
right to a forfeiture is waived where the legislature,
subsequent to the accrual of the right to a forfeiture,
declares in distinct terms that the corporation shall
continue, or where it thereafter authorizes the cor-
poration to perform certain corporate functions, or
otherwise clearly signifies its intention that the cor-
poration shall continue to exist73. And the state
waives the right to a forfeiture of corporate rights
by an act of the legislature extending the time fer
the commencement of certain work when the corpora-
tion has already failed to commence operations in
the time prescribed by the act of incorporation74.
Sec. 269. Where the charter of a turnpike road
company was conditioned that its road should be
built in a specified manner 'before tolls should be
levied, a breach of this condition was held waived
by a supplementary act of the legislature giving au-
thority to the company to take tolls in a manner in-
consistent with that first prescribed75. And in the
case of a corporation chartered for the purpose of
taking tolls for the navigation of an artificial chan-
nel, an act of the legislature declaring that if the
company should permit the channel to become so ob-
73. State v. Bank of Charleston, 2 McMull. Law, 439 ; 39 A. D. 135.
74. Milford Co. v. Brush, 10 Oh. Ill ; 36 A. D. 78.
75. State v. Goodwinsville Co., 44 N. J. 496.
See: Mechanics Society, 31 La. Ann. 627.
Basshor v. Dressel, 34 Md. 503.
People v. Ottowa Co., 115 111. 281 ; 5 N. E. 413.
Central Co. v. People, 5 Colo. 39.
State v. Vincennes University, 5 Ind. 77.
Baltimore Co. v. Marshall Co., 3 W. Va. 319.
COEPOEATIONS 255
structed as to impede navigation the collection of
tolls should be suspended till the obstruction was
removed, was held a waiver of the right to have the
charter forfeited for such cause76. And, again, where
a deposit of a certain sum in cash with the state
Treasurer was required as a condition precedent to
the beginning of operations by the corporation, this
requirement was held waived by the acceptance of
United States Bonds in lieu of the cash deposit77.
Sec. 261. But it is said that the doctrine of
waiver of the right to declare a forfeiture of a char-
ter by subsequent legislative acts does not apply
where, by the terms of the charter, the franchise ab-
solutely terminates upon failure to perform certain
conditions78. In such case no action is necessary to
be performed by the state, as the failure to perform
the condition ipso facto works a forfeiture. But un-
less the charter contain some such provision, it must
be annulled by the state through some appropriate
action, if the state would take advantage of its right
accruing by reason of the breach of condition; for
otherwise the corporation will continue notwith-
standing the breach of condition.
76. State v. Morris, 73 Tex. 435; 11 S. W. 392.
77. Briggs v. Cape Cod Co., 137 Mass. 71.
See: Rice v. National Bank, 126 Mass. 300.
78. State v. Fourth Turnpike, 15 N. H. 162 ; 41 A. D. 690.
256 THE LAW OF WAIVES
CHAPTER 12.
INSURANCE.
Section
1. RELATION BETWEEN INSURER AND ITS
AGENTS—
A. In General 262
B. Who Are Agents, Who May Waive Rights. . .269
C. Clerks 272
2. WHAT MAY BE WAITED; WHAT AMOUNTS TO
A WAIVER —
A. Acts Prohibited By Charter 274
B. Conditions —
(1) Breach of conditions prior to deliv-
ery of policy 277
(a) Condition as to title 279
(b) Condition as to encumbrances. .282
(c) Condition as to vacancy 285
(d) Condition as to use of remises 286
(e) Condition as to prior insurance, 287
(f) Condition as to iron-safe clause 289
(2) Breach of conditions subsequent to
delivery of policy —
(a) Change in title 291
(b) Vacancy 293
(c) Encumbrances 295
Condition as to use of premises 286
Condition as to prior insurance 287
C. Payment Of Premium —
(1) Before delivery of policy —
(a) In (general 304
(2) After delivery of policy —
(a) Theory that payment at matur-
ity may be waived 308
(b) By custom 312
(3) Waiver of cash payment 314
I. FORFEITURES —
A. In General .^ . . . . 31i5
B. Indorsement Of Waiver On Policy. 317
INSURANCE 257
4. NOTICE OF LOSS—
A. Silence Of Insurer, Or Failure To Object
Not A Waiver 320
B. Contrary View 322
C. Distinction Between Notice Out Of Time and
Notice Defective In Form. 323
6. PROOFS OF LOSS —
A. Failure To File Any Proofs —
(1) In general 324
(2) By denial of liability 325
(3) Refusal to pay on other grounds. . . .326
(4) By other acts or conduct 327
B. Defective Proofs Within Time Required —
(1) No objection by insurer 329
(2) Objection on other grounds 332
C. Not Filed In Time. 333
D. Who May Waive Proofs 335
IE. Whether Proofs May Be Waived Orally —
(1) In the negative 337
(2) In the affirmative 338
8. AIRBIT1RATION 339
7. "LIMITATION OF TIME TO SUE. —
A. What Constitutes A Waiver » . .« 341
B. Acts Not A Waiver 342
1. RELATION BETWEEN INSURER AND ITS AGENTS.
A. IN GENEBAL:— Sec. 262. The business
of insurance is carried on almost exclusively by cor-
porations, due to the vastness of the field covered and
to the large amount of capital necessary for its op-
erations and a compliance with the statutes all states
have enacted for safe-guarding the public. These
corporations, being impersonal, must necessarily
act by officers and agents. And the field has become
fertile with endeavors to limit the liability of the in-
surer to the insured, especially by attempts to pro-
258 THE LAW OF WAIVER
vide restrictions on the manner in which, the busi-
ness may be carried on, and more especially through
stipulations contrived to circumscribe the powers
of the agents, and to limit their acts and prescribe
an exclusive manner in which such acts shall be
shown. Such stipulations and attempted restric-
tions have given rise to endless litigation, the report-
ed cases thereon being so numerous and covering
the application of law to such a variety of facts, that
an apparent discord among the courts is presented
as to the enunciation of principles, which is, how-
ever, more apparent than real ; for, underlying near-
ly all of the cases, is a recognition of certain prin-
ciples which have gradually been evolved for the
protection of the public and at the same time for the
giving scope to all powers necessary for the per-
formance of the functions of an insurer.
Sec. 263. The question most frequently pre-
sented to the courts for solution is based on attempts
by the insurer to prescribe the extent to which the
acts of its agents may be binding upon it, and how
those acts shall be manifested. There is no good
reason why a corporation may not limit the acts of
its agents and prescribe the way they shall perform
their duties, the same as an individual. A different
rule would place them at the mercy of unscrupulous
agents, and prove disastrous to the insurance busi-
ness. And for such reasons, the general rules of
agency applicable to individuals should be and are
equally applicable to insurance companies. The ex-
tent of the power of such companies, however, to lim-
it or restrict the power or authority of their agents
will not permit fraud to be legalized nor the corpora-
INSUBAKCB 259
tion to be deprived of powers given it by organic
law.
Sec. 264. Contracts of insurance nearly al-
ways contain conditions upon the existence or non-
existence of which, as the case may be, depends the
validity of the contract. The facts constituting the
condition may exist prior to, at or subsequent to the
issuance of the policy, and the provision always is
that such named facts shall render the contract of
insurance void unless consented to or waived by the
insurer, acting by its proper agent in a designated
manner, usually by memorandum of writing in-
dorsed on the policy itself. And such policy usually
contains a clause to the effect that no agent has pow-
er or authority to waive any condition appearing in
the policy. And under such clause, it is held that the
delivery of the policy to the insured is sufficient to
put him on notice that the company would not be
bound by an agent's waiver79. But such clause in the
policy forbidding a waiver of conditions or stipula-
tions or requiring certain acts to be done in a desig-
79. Thornton v. Travelers' Ins. Co., 116 Ga. 121; 42 S. E. 287; 94
A. S. R. 99.
Cleaver v. Traders' Ins. Co., 65 Mich. 527; 32 N. W. 660; 8
A. S. R. 908.
Lamberton v. Conn. Fire Ins. Co., 39 Minn. 129; 39 N. W. 76 ; 1
L. R. A. 272.
Clevenger v. Mut. Ins. Co., 2 N. Dak. 114 ; 3 N. W. 313.
Dryer v. Security Ins. Co., 94 la. 471 ; 62 N. W. 798.
Sprag^ie v. West Ins. Co., 49 Mo. App. 423.
Catoir v. Am. L. Ins. Co., 33 N. J. L. 487.
Quinlan v. Prov-Wash. Ins. Co., 133 N. T. 356; 31 N. E. 31; 28
A. S. R. 645.
Union Cent. Co. v. Hook, 62 Oh. bt. 256; 56 N. E. 906.
Hartford Co. v. Small 66 Fed. 490 ; 14 C. C. A. 33 ; 30 U. S. App.
337.
Smith v. Niagara Ins. Co., 60 Vt. 682; 15 Atl. 353; 6 A. S. R.
144; 1 L. R. A. 216.
260 THE LAW OF WAIVER
nated manner or by a designated agent is not con-
clusive and by no means final, although it is material
and controlling in the absence of other evidence.
Sec. 265. Any condition or stipulation named
in a (policy, however material it may be, may be
waived by the insurer by whomsoever it chooses to
act and in any manner it may desire, even in direct
contravention of the terms of the policy. A differ-
ent rule would work hardships in many instances,
for it would prevent a modification of contracts, it
would prevent the insurer from changing its views
and line of conduct, and preclude it from enlarging
the authority conferred upon its agents. And, as
hereinafter stated, the provision in a policy that
neither the insurer nor its agents will waive any
stipulation, condition or forfeiture, or that it will act
only in a certain manner or by only certain desig-
nated agents, cannot be held as limiting the power
of the insurer or its agents to act in whatever man-
ner they see fit in the discharge of the business of
an insurer. So, the ultimate matter to determine is
not whether the policy contained such limitations or
restrictions, but whether the subsequent acts of the
insurer or its agents amounted to a waiver of them ;
and if so, the waiver is as effective as if it had been
written into the policy itself80.
80. Ruthven v. Am. Ins. Co., 102 la. 550 ; 71 N. W. 574.
Mut. Assoc. v. Mills, 82 Fed. 508 ; 27 C. C. A. 212.
Aetna Co. v. Frierson, 114 Fed. 56 ; 51 C. C. A. 424.
Knickerbocker Co. v. Norton, 96 U. S. 234 ; 24 L. Ed. 689.
Phoenix Co. v. Doster, 106 U. S. 34 ; 1 Sup. Ct. R. 18; 27 L. Ed.
65.
Wilson v. Com. Union Co., 61 S. Car. 540; 29 S. B. 245; 64 A.
S. R. 700.
Keeler v. Niagara Co., 16 Wis. 523 ; 84 A. D. 714.
Dick v. Eq. F. Ins. Co., 92 Wis. 46 ; 65 N. W. 742.
INSURANCE 261
Sec. 266. Proceeding on the theory that condi-
tions, restrictions, stipulations, forfeitures or war-
ranties in insurance contracts may be waived, it be-
comes material to determine who are agents of an
insurer capable of causing such waiver. The usual
classification of insurance agents as local and gener-
al is not sufficient in the matter under consideration ;
for the power of an agent in this regard does not de-
pend on the extent of the territory over which he
may have dominion. But the authority of an agent
must depend on the nature of the business intrusted
to him, and must be sufficient to fulfill its require-
ments. The criterion is not what powers an agent
actually had, but what powers the insurer held him
out to the public as possessing81. His authority can-
not be limited by private instructions never brought
to the attention of the insured82 ; and if he have pow-
Coursin v. Perm. Co., 46 Pa. St. 323.
Schmurr v. State Co., 30 Oreg. 19; 46 Pac. 363.
Ala. St. Co. v. Long, etc., 123 Ala. 667; 26 So. 655.
Carrugl v. Atl. Co., 40 Ga. 135; 2 A. R. 567.
Lutz v. Anchor Co., 120 la. 136 ; 94 N. W. 274 ; 98 A. S. R. 349.
Am., Etc. Co. v. MeLanathan, 11 Kans. 533.
German Co. v. Gray, 43 Kans. 497; 23 Pac. 637; 19 A. S. R.
150; 8 L. R. A. 70.
German-Am. Co. v. Yellow, etc. Co., 27 Ky. L. R. 57 ; 67 S. W.
19; 68 S. W. 1081.
German-Am. Co. v. Humphrey, 62 Ark. 348; 35 S. W. 428;
54 A. S. R. 297.
Tillis v. Liverpool Co., 46 Pla. 268 ; 35 So. 171.
Excelsior Co. v. Riddle, 91 Ind. 84.
Hanover Co. v. Dole, 20 Ind. App. 333 ; 50 N. E. 772.
Citz. Co. v. Stoddard, 197 111. 330; 99 111. App. 469; 64 N. B.
355.
Bouton v. Am. Mut. Co., 25 Conn. 542.
Hale v. Mechanics Co., 6 Gray 169; 66 A. D. 410.
Burdick v. Sec. L. Co., 77 Mo. App. 629.
Steen v. Niagara Co., 89 N. T. 315; 42 A. R. 297.
Phoenix Co. v. Lodge, 41 Neb. 21; 59 N. W. 752.
Liverpool Co. v. Sheffy, 71 Miss. 919 ; 16 So. 307.
81. Eclectic Ins. Co. v. Fahrenburg, 68 111. 463.
82. So. Life Ins. Co. v. McCain, 96 U. S. 84.
Breckenridge v. Am. Cent. Co., 87 Mo. 62.
262 THE LAW OF WAIVER
er to issue policies he may bind his principal by his
waivers or other acts done in the furtherance or con-
duct of his business83. And knowledge brought to
the attention of the agent is imputed to the princi-
pal84, and his mistakes are attributed to the insur-
er85, as are misstatements or inaccuracies in the
application. These propositions are true even where
the application provides that the insured shall be re-
sponsible for the acts of the insurer's agent86, and
even though it provides that statements therein shall
be deemed warranties87. Frequently ingenious at-
tempts have been made 'by insurers by provisions in
their applications for insurance to make the party
forwarding the application the agent of the insured
and thus escape liability for the mistakes, fraud or
misstatements of such agent and be relieved from
the binding effect of the acts. Such provisions
should not and do not receive countenance from the
later and better adjudications. As was well said in
one case, "The ordinary instructions of companies
to their agents, and their dealings with them, are too
well known for us to shut our eyes to the manner in
which their work is carried on. This is but a form
of words to attempt to create on paper an agency
which in fact never existed. It is an attempt of the
83. Phoenix Oo. v. Spiers, 87 Ky. 286; 8 S. W. 453.
Ins. Co. v. Hogue, 41 Kans. 524 ; 21 Pac. 641.
84. Campbell v. Mer. & F. Co., 37 'N. H. 35.
85. Meadowcraft v. Standard Co., 61 Pa. "91.
Continental Co. v. Munns, 120 Ind. 30; 22 N. E. 78.
86. Hodgkins v. Mont. Co. Ins. Co., 34 Barb. 213.
Kelly v. Troy Co., 3 Wis. 254.
Winans v. Allemania Co., 38 Wis. 342.
Roth v. City Co., 6 McLean 324 (U. S.).
87. Continental Co. v. Pearce, 39 Kans. 396; 18 Pac. 291; 7 A. S.
557.
INSURANCE 263
companies, not to restrict the powers of their own
agents, but an effort to do away with that relation
altogether by mere words, and to make him, in the
same manner, the agent of the insured when, in fact,
that relation never existed. We do not believe that
the entire nature and order of this well established
relation can be so easily subverted by this ingenious
device of words. The real fact as it existed cannot
be hidden in this manner; much less can it be de-
stroyed and something that did not in reality exist
be placed in its stead. The substance is superior
to the mere drapery of words with which one party
wishes to bring into existence and clothe an unreal
authority."88 And the case further says that after
receiving the premiums and benefits from an insur-
ance contract, the company should not escape liabil-
ity by questioning the acts or statements of its own
agent89.
88. Continental Co. v. Pearce, 39 Kans. 396 ; 18 Pac. 291 ; 7 A. S. R.
557. Citing: Sullivan v. Phenix Co., 34 Kans. 170; 8 Pac. 112.
Kausal v. Minn. Co., 31 Minn. 17; 16 N. W. 430; 47 A. S. R. 776.
Ins. Co. v. Wilkinson, 13 Wall. 222 (U. S.).
Prot. Ins. Co. v. Harraer, 2 Oh. St. 452 ; 59 A. D. 684.
Sprague v. Holland Co., 69 N. T. 128.
Boetcher v. Hawkeye Co., 47 la. 253.
Gans v. St. Paul Co., 43 Wis. 108 ; 28 A. R. 535.
Iron Works v. Phoenix Co., 25 Conn. 46,r>.
Clark v. Union Mut. Co., 40 N. H. 333 ; 77 A. D. 721.
2 Wood, Fire Ins. Sec. 385-8.
May, Insurance, Sec. 140.
89. Id., citing:
Lynchburg Co. v. West, 76 Va. 575 ; 44 A. R. 177.
Higgins v. Phoenix Co., 74 N. Y. 6.
Eggleston v. Council Bluffs Co., 65 la. 308; 21 N. W. 851.
Guardian Co. v. Hogan, 80 111. 35; 22 A. R. 180.
Sherman v. Madison Co., 39 Wis. 104.
Patten v. Merchants Co., 40 N. H. 375.
Breckenridge v. Am. Cent. Co., 87 Mo. 63.
Am. Co. v. Mahone. 56 Miss. 180.
Mass. Ins. Co. v. Robinson, 98 111. 324.
Thomas v. Hartford Co., 20 Mp. App. 150.
Home Ins. Co. v. Lewis, 48 Tex. 622.
264 THE LAW OF WAIVES
Sec. 267. These views are concurred in by the
Supreme Court of the United States. It is there
said that insurance companies holding out to the
public certain parties as their agents, furnishing
them blanks and advertising matter, permitting
them to countersign and deliver policies, urging
them on to increased activities, and paying them
large commissions, should not be released from re-
sponsibility to the parties with whom they transacted
business for the acts and declarations of the agent
within the scope of his employment. "It is yet true
that reports of judicial decisions are filled with ef-
forts of these companies, by their counsel, to estab-
lish the doctrine that they can do all this, and yet
limit the responsibility of these agents to the simple
receipt of the premium and delivery of the policy;
the argument being that as to all other acts of the
agent he is the agent of the assured. This proposi-
tion is not without support in some of the earlier
decisions on the subject ; and, at a time when insur-
ance companies waited for parties to come to them
to seek insurance, or to forward applications on
their own motion, the doctrine had a reasonable
foundation to rest upon. But to apply such a doc-
trine in its full force to the system of selling policies
through agents, which we have described, would be
a delusion and a snare, leading, as it has done in
numerous instances, to the grossest frauds of which
the insurance companies receive the benefit, and the
parties supposing themselves insured are the vic-
tims. The tendency of the modern decisions in this
country is steadily in the opposite direction. The
powers of the agent are prima facie co-extensive
with the business intrusted to his care, and will not
be narrowed by limitations not communicated to the
INSURANCE 265
person with whom he deals."90 An apparent lean-
ing away from the emphatic statements of this case
was manifested by the same court in a later decision.
But it does not appear that the court abandoned its
earlier position, for in the later case the case rested
on the point that the assured had signed an applica-
tion, without reading it and it subsequently occurred
that it contained false statements unknown to the
applicant. And the court held, in accordance with
established rules of evidence, that parol evidence
could not be admitted to vary or contradict the terms
of the written application, and more particularly
rested the case on the fact that the power of the
agent was limited by a statement in the application
which was brought to the knowledge of the insured91.
The great mass of authority is as above stated, and
the same principle is set forth by Judge Cooley as
follows: "It cannot be tolerated that one party
shall draft the contract for the other, and receive
the consideration, and then repudiate the contract
on the ground that he had induced the other party
to sign an untrue representation, which was, by the
very terms of the contract, to render it void * * *
When an agent, who at the time and place is the
sole representative of the principal, assumes to know
what the principal requires, and after being fur-
so. Union Mut. Co. v. Wilkinson, 80 U. S. 13 Wall. 222 ; 20 L. Ed. 617.
Followed in Baker v. Home Co., 64 N. Y. 650.
Kausal v. Minn. Co., 31 Minn. 17 ; 16 N. TV. 430 ; 47 A. S. R.
776.
Planters Co. v. Myers, 55 Miss. 504; 30 A. R. 526.
Rissler v. Am. Cent. Co., 150 Mo. 375 ; 51 S. W. 757.
Johnson v. Dakota Co., 1 N. Dak. 179 ; 45 N. W. 803.
Kister v. Lebanon Co., 128 Pa. St. 553 ; 18 Atl. 450 ; 15 A. S. R.
699 ; 5 L,. R. A. 648.
91. N. Y. Life Co. v. Fletcher, 117 U. S. 529; 29 L. Ed. 934.
266 THE LAW OF WAIVEB
nished all the facts, drafts a paper which he declares
satisfactory, induces the other party to sign it, re-
ceives and retains the premium moneys, and then de-
livers a contract which the other party is led to be-
lieve, gives him the indemnity for which he paid his
money, we do not think the insurer can be heard in
repudiation of the indemnity, on the ground of his
agent's unskillfulness, carelessness or fraud."92
Sec. 268. So, from the adjudications this prin-
ciple is deduced : The agent taking applications for
insurance, using the company's blanks, forwarding
the applications, delivering policies and receiving
premiums is the agent of the insurer and not of the
insured, and the insurer is, therefore, liable for the
acts of its agent in the apparent scope of his em-
ployment, and he may bind it by his acts, represen-
tations or waivers.
B. WHO ABE AGENTS WHO MAY WAIVE
BIGHTS— Sec. 269. The extent to which an agent
is permitted to act is usually the test by which to de-
termine whether he can bind his principal by a waiv-
er of conditions, forfeitures or restrictions. If he is
permitted by the insurer to solicit insurance, fill in
and forward applications, receive and deliver, or
countersign and deliver policies and collect premi-
92. Aetna Co. v. Olmstead, 21 Mich. 251; 4 A. R. 483.
Pac. Mut. Co. v. Snowden, 58 Fed. 342.
N. J. Mut. v. Baker, 94 U. S. 610; 24 L,. Ed. 268.
Eames v. Home Co., 94 U. S. 621 ; 24 L. Ed. 298.
Continental Co. v. Chamberlain, 132 U. S. 304 ; 33 L. Ed. 341.
Knickerbocker Co. v. Trefz, 104 U. S. 197 ; 26 L. Ed. 708.
American Co. v. Mahone, 88 U. S. 21; 21 Wall. 152; 22 L. Ed.
593.
Equitable Co. v. Hazlewood, 75 Tex. 338 ; 12 S. W. 621 ; 7 L.
R. A. 217.
Flynn v. Equitable Co., 78 N. Y. 568; 34 A. R. 561.
INSURANCE 267
urns therefor, and thus attend to the business of his
employer, such employer is bound by his waivers to
the same extent as if the principal were acting. The
tendency of modern authorities is against making re-
strictions in the policy upon an agent's authority
conclusive upon the assured, and that the company or
any agent with general or unlimited powers, clothed
with an actual or apparent authorization, may either
orally or in writing, waive any written or printed
condition in the policy, notwithstanding such restric-
tions, and many cases apply this rule, even though
the policy provides that a distinct, specific agreement
shall be endorsed thereon, or otherwise prescribes
a particular mode of waiver or that only certain per-
sons may waive, and there would 'be no valid reason
why, if the agent could waive the restrictions in the
first case, he may not in the latter ; for such restric-
tions are declared to be ineffectual to limit the legal
capacity of the company to bind itself by waiving
conditions of a policy through an agent acting within
the real or apparent scope of his employment93.
'Sec. 270. Attempts have frequently been made
by the courts to create a distinction between the pow-
ers of a general and a local agent in applying the
principles under consideration. But the difficulty
arising in such case is to arrive at a proper defini-
tion of the terms general and local. It is customary
to speak of a local agent as one whose district of
operations is circumscribed, and a general agent as
one who has a wider field or territory under his sup-
ervision. And yet, an agent may be restricted to
93. I Joyce, Insurance, 439.
268 THE LAW OF WAIVEB
work in only one small town, and his powers still be
as great as if he covered the whole state. And one us-
ually denominated a general agent may be absolute-
ly denied the power to waive conditions, stipulations
or forfeitures, while he who is called a local agent
may have such power absolutely. And the mere fact
of having a high title in an insurance company should
not and has been held not to make any difference
where the prohibition in a policy was against waiv-
ers by all agents94. This, however, has been decided
differently, in other states, perhaps under facts
which were not altogether similar, where it was held
that the president, vice-president and secretary95,
the assistant-secretary, superintendent and general
manager96, were not to be included in the same cate-
gory as other agents, and that they could bind the
company by their acts irrespective of the provisions
of the policy. No forceful reason presents itself for
such a classification and differentiation of agents.
The classification should be based on the character of
the duties performed by the agent whose acts are in
question. The highest official in an insurance com-
pany may never have performed a single act in the
real transaction of the company's business; and it
would be absurd to say that he could step in in a
particular case and authorize acts in direct contra-
vention of the terms of the policy, when the public
knew that it was not customary for him to exercise
94. O'Leary v. Mer. M. Co., 100 la. 173 ; 69 N. W. 420 ; 62 A. S. R.
555.
Taylor v. State Co., 98 la. 521 ; 67 N. W. 577 ; 60 A. S. R. 210.
<J5. Hastings v. Brooklyn Ins. Co., 138 N. Y. 473 ; 34 N. E. 289.
96. Bankers Assoc. v. Stapp, 77 Tex. 517; 14 S. W. 168; 19 A. S. R.
772.
Piedmont Co. v. McLean, 31 Gratt. 517 (Va.).
INSURANCE 269
such powers, and the company had never actually or
impliedly given him authority therefor. And on the
other hand, an agent restricted to a small district
may have been so held out by the company, and it
may have so ratified his acts as to have endowed him
with implied power to waive any provision or to
transmute the very terms of the policy itself. It
is true that great inharmony as to this subject is
prevalent among the authorities. But the true rule
to be deduced from a consideration of the cases is
this : If an agent has authority to take applications,
countersign and deliver policies, collect premiums,
and to act generally for the insured in making con-
tracts, and his acts and waivers have been ratified
and acquiesced in by the insurer, his waivers of con-
ditions and stipulations will be effective and may be
made orally notwithstanding an express provision
in the policy that no waiver should be made unless
endorsed on the policy97; or, as has been said, the
97. Grubbs v. N. Car. Co., 108 N. Car. 472; 13 S. E. 236; 23 A.
S. R. 62.
Wood on Fire Insurance, Sec. 391.
Fishbeck v. Phoenix Co., 54 Cal. 422.
Miner v. Phoenix Co., 27 Wis. 693; 9 A. R. 479.
Phoenix Co. v. Spiers, 87 Ky. 285 ; 8 S. W. 453.
Kitchen v. Hartford Co., 57 Mich. 135; 23 N. W. 616 ; 68 A. R.
344.
Shearman v. Niagara Co., 46 N. T. 526 ; 7 A. R. 880.
McFarland v. Kittaning Co., 134 Pa. St. 590; 19 Atl. 796; 19
A. S. R. 728.
Phenix Co. v. Bowdre, 67 Miss. 620; 7 So. 596; 19 A. S. R. 326.
State Co. v. Latourette, 71 Ark. 242 ; 74 S. W. 300 ; 100 A. S. R.
63.
Life Ins. Co. v. Fallow, 110 Tenn. 720; 77 S. W. 937.
Woolper v. Franklin Co., 42 W. Va. 647 ; 26 S. E. 521.
Standard Co. v. Friedenthal, 1 Colo. App. 5 ; 27 Pac. 88.
Continental Co. v. Ruckman, 127 111. 364; 20 N. E. 77; 11 A. 8.
R. 121.
National Co. v. Barnes, 41 Kans. 161 ; 21 Pac. 165.
Springfield Laundry v. Traders Co., 151 Mo. 90; 52 S. W. 238;
74 A. S. R. 521.
270 THE LAW OF WAIVER
powers of an agent are prima facie co-extensive with
the apparent authority given him, and persons deal-
ing with him may judge of their extent from the
nature of the business intrusted to his care*8.
Sec. 271. Of course it must be at all times un-
derstood that insurance companies have the right to
limit the acts which may toe done by their agents the
same as other principals have, and that such limi-
tations, when brought to the actual knowledge of the
insured, are binding upon him, provided the general
powers generally exercised by such agent were not
inconsistent with such limitation and the fact was
known by the insurer or, if not known, its ignorance
was the result only of fraud or gross inattention to
business". But actual notice of limitations of an
agent's authority must in all cases be given to the as-
sured in time, for a person contemplating insurance
is entitled in dealing with an agent to assume that he
has full powers respecting the matters in which he
is acting in the steps preliminary to the insurance
and in issuing the policy, and if the authority which
the agent is otherwise deemed to possess has in fact
been limited, the limitation must be brought home to
the insured100.
>8. Wood, Fire Insurance, 500.
Beal v. Park Ins. Co, 16 Wis. 241; 82 A. D. 719.
•9. Parker v. Rochester Co., 162 Mass. 479; 39 N. E. 179.
Hunt v. State Co.. 66 Neb. 121 ; 92 N. W. 921.
Russell v. Prudential Co., 176 N. Y. 178; 68 N. E. 252; 98
A. S. R. 656.
No. As. Co. v. Bld'g. Assoc., 183 U. S. 308; 22 Sup. Ct. R. 133;
46 L. Ed. 213.
109. Farnham v. Phoenix Co., 83 Cal. 246; 23 Pac. 869; 17 A. S. R.
233.
Hoge v. Dwelling: H. Co., 138 Pa. St. 66 ; 20 Atl. 939.
Howard Co. v. Owen's Adm., 14 Ky. L. R. 881 ; 21 S. W. 1037.
Hahn v. Guardian Co., 23 Oreg. 576; 32 Pac. 683; 37 A. S. R,
709.
INSURANCE 271
0. CLERKS :— Sec. 272. According to the or-
dinary course of business, insurance agents frequent-
ly employ clerks to assist them. In many cases they
could not transact their business if obliged to attend
to all details in person. And these clerks can bind
their principals in any of the business they are au-
thorized to transact. An insurance agent can author-
ize his clerk to contract for risks, to deliver policies,
to collect premiums, and to take payment for pre-
miums in cash or securities, and to give credit for
premiums or to demand cash ; and the act of the clerk
is in all such cases the act of the agent, and binds
the company just as effectually as if it had been
done by the agent in person. The maxim of dele-
gatus non potest delegare does not apply in such a
case1. So, a clerk may waive conditions and provi-
sions in an insurance policy to the same extent as the
agent, his employer, could do2. Soliciting insurance
and bringing the applications to the agents who fin-
ally pass upon them and determine whether or not
to issue a policy, makes the solicitor the clerk of the
agents and not an insurance broker ; therefore, oral
notice to such clerk of additional insurance contrary
to the terms of a policy was. notice to the company3.
Liverpool Co. v. Richardson, 11 Okla. 585 ; 69 Pac. 938.
Royal Neighbors v. Bowman, 75 111. App. 566.
Gal. Co. v. Gracey, 15 Colo. 70; 24 Pac. 577; 22 A. S. R. 376.
Bodlne v. Exchange Co., 51 N. T. 117 ; 10 A. R. 566, citing:
Story on Agency, Sec. 14.
Deitz v. Providence Co., 33 W. Va. 626; 11 S. B. 50; 25 A. S. R.
908.
May on Insurance, 3d Ed. Sees. 154, 154A.
2 Wood on Insurance, 2d Ed. Sec. 433.
Eclectic Co. v. Fahrenburg, 68 111. 463.
Llngenfelter v. Phoenix Co., 19 Mo. App. 252.
Arff v. Star Co., 125 N. Y. 57; 25 N. E. 1073; 21 A. 8. R. 721;
10 L. R. A. 609.
McEven v. Montgomery Mut., 5 Hill 101.
v. C«aese9 Co. 14 N. Y. 421.
272 THE LAW OP WAIVES
And the principles applying to clerks are equally ap-
plicable to sub-agents, and the acts of the latter are
the acts of the agent and, therefore, the acts of the
company4. So, if a sub-agent, who has been correct-
ly informed, makes a mistake in filling in an applica-
tion, the company will be bound5. And it is said that
a company is liable for the acts of a sub-agent
whether it knew of his employment or not if it re-
ceived the benefits of his labor6. And even where a
sub-agent countersigns a policy for the agent, the
company is bound if, after a knowledge of all the
facts, the agent ratifies the act of the sub-agent by
delivering the policy7.
Sec. 273. The courts are not wholly harmonious
as to the above principles. In one case it was held
that a clerk employed by an insurance agent, without
the knowledge of the company, and authorized by the
agent to fill out and issue policies, sign the agent's
name, and indorse the rate of insurance on policies,
was not the agent of the company, and though the
agent had power to waive any forfeiture of the pol-
icy for additional insurance, effected without the
consent of the company, he could not delegate his
authority to his clerk, and hence that a waiver by
such clerk could not be imputed to the company8.
And several other courts lean toward this reason-
ing on the well-established principle of agency that
4. Grubbs v. N. Car. Co.. 108 N. Car. 472; 13 S. E. 236; 23 A. S.
R. 62.
5. Langdon v. Union Co., 14 Fed. 272.
6. Continental Co. v. Ruckman, 127 111. 364; 20 N. E. 77; 11 A.
S. R. 121.
7. Grady v. Am. Cent. Co., 60 Mo. 123.
4. Waldman v. No. British Co.. 91 Ala. 170; 8 So. 666; 24 A. S. R.
883.
INSURANCE 273
an agent cannot delegate his authority to another.
But the decided weight of authority is on the
side of the doctrine first above announced. And
familiarity with the methods in which the insurance
business is carried on will suggest the good sense and
reason of the doctrine. Insurance agents usually
solicit and transact insurance business through
clerks, sub-agents and assistants, and the more cap-
able the agent is, and the greater the volume of his
business, the greater will be his need of clerical as-
sistance and sub-agents ; and in case of his employ-
ment of such, promotion of the insurance business
and its most convenient dispatch, as well as justice
and good faith with those dealing with insurance
companies through such agencies, demand that the
insurers be held liable for the acts of the clerks and
assistants9.
2. WHAT MAY BE WAIVED; AND WHAT AMOUNTS
TO A WAIVER:
A. ACTS PROHIBITED BY CHARTER:—
Sec. 274. The act of incorporation of an insurance
company is an enabling act ; it gives the corporation
all the power it possesses; it enables it to contract,
and when it prescribes to it a form of contracting it
must observe that mode or the instrument will no
more create a contract than if the body had never
Bennett v. Council Bluffs Co., 70 la. 600; 31 N. W. 948.
Fitzgerald v. Hartford Co., 56 Conn. 116 ; 13 Atl. 673 ; 17 Atl.
411 ; 7 A. S. R. 288.
Steele v. German Co., 93 Mich. 81 ; 53 N. W. 514 ; 18 L. R. A. 85.
Kq. Soc. v. Brobst. 18 Neb. 526; 26 N. W. 204.
Heath v. Springfield Co.. 58 N. H. 414.
Carpenter v. Ger-Am. Co.. 135 N. Y. 298 ; 31 N. E. 1015.
Hartford Co. v. Josey. 6 Tex. Civ. App. 290 ; 25 S. W. 685.
Goode v. Ga. Home Co.. 92 Va. 392; 23 S. E. 744; 53 A. S. R.
817; 30 I* R. A. 842.
274 THE LAW OF WAIVER
been incorporated10. Under such authority it has
been held that prohibitions in a charter or the by-
laws of an insurance company cannot be waived by
its officers or agents11, the cases going on the theory
that provisions in such charters or by-laws are semi-
public in that they are designed for the prevention
of over-insurance and other evils to which the pub-
lic might be subjected as well as for the protection of
the insurer itself12. But no good reason presents
itself for permitting its officers and agents to forego
other rights and benefits pertaining to the business
and yet denying their power to waive any of the pro-
visions of its charter or by-laws where the interests
of an innocent individual are involved.
Sec. 275. Such officers and agents know the
extent of their powers and the limitations of author-
ity given by the charter and by-laws of the company,
and this is not true of one per cent, of those who are
insured by such comany and pay their premiums to
it. And to say that while holding this knowledge
exclusively such insurer can deliberately act con-
trary to the terms of its charter or by-laws while as-
suming to act in accordance with them or at least in-
ducing those dealing with it to believe that its rights
»o disregarded would not be insisted upon and then
after action brought against it, to hide behind a
cloak of immunity from liability theretofore un-
known to the insured, occurs to us to be legalizing
fraud and unfair dealing. And it has been held that
10. Head v. Providence Co., 2 Cranch 127 (U. S.).
11. Hale v. Mech. Co., 6 Gray 169; 66 A. D. 410.
Lolhner v. Home Co.. 17 Mo. 247.
Stark County Co v. Hurd. 19 Oh. 149.
18. Couch *. City Co., 38 Conn. 181 ; 9 A, R. 375.
INSURANCE 275
the violation of its charter is a matter to be settled
between the insurer and those who gave it its char-
ter, but it cannot set up its own misconduct or dere-
liction in defense against the claim of the insured
for indemnity, as by showing that in insuring to the
stipulated amount it has infringed one of its own by-
laws13. So, an estimate of the valuation made by
the agent of the insurer or by him and the insured
together is controlling, regardless of any contrary
provision of the by-laws of the company14.
Sec. 276. And a policy of insurance is not void
because the risk was taken in violation of a by-law
providing that certain risks should not be taken un-
less approved by a special committee, the policy
having been issued by a duly-appointed agent of the
company upon full knowledge of all the facts mate-
rial to the risk15. Another case was a suit on a pre-
mium note. The defense was that the note and pol-
icy were void because the risk had been taken in vio-
lation of the company's by-laws ; but it was held that
this did not render void the policy nor the note given
in consideration of it16. And the court of another
state said : The first objection made by the defend-
ants to the plaintiff's right to recover is that the
plaintiff did not give notice of the loss in the manner
and within the time required by the by-laws of the
company. The defendants were, in fact, notified of
the loss the dav after the fire and in the manner stat-
II. Hoxsie v. Providence Co., 6 R. I. 517.
Fuller v. Boston Co.. 4 Met. 206 (Mass.).
Cumberland v. Schnell, 29 Pa. St. 31.
14. Wilbur v. N. Eng. Co.. 31 Me. 219.
15. Merchants Co. v. Curran. 45 Mo. 142 ; 100 A. D. 3«1.
16. Union Co. v. Keyser, 32 N. H. 313 : 64 A. D. 375.
THE LAW OF WAIVBB
ed in the report. Almost a week after this notice the
president of the defendants came to Fairhaven and
New Bedford and went to the ruins. The object of
this visit of the president, no doubt, was to make him-
self fully acquainted with all the facts and circum-
stances of the case. After the president had thup
been to the ruins, it would seem, as the case finds,
that the defendants declined to pay the loss altogeth-
er. The president, without doubt, obtained all the
information he desired ; and further notice to the de-
fendants, therefore, would have been wholly unim-
portant and useless to them. The refusal to pay the
loss was not put upon the ground of any defect or
insufficiency in the notice. No objection was taken
at that time to the form of the notice ; no further or
more particular notice was requested; but the de-
fendants declined to pay the loss altogether; and
within thirty days after the loss, and of course be-
fore the expiration of the time allowed to the plain-
tiff to give the notice. This conduct on the part of
the defendants, upon any sound and just principle
of fair dealing, must be regarded as a waiver of any
further or different notice. The principle of waiver
is a recognized and well-settled principle, and ap-
plies with much force to the present case17.
B. CONDITIONS:
1. BREACH OF CONDITION PRIOR TO
DELIVERY OF POLICY. Sec. 277. The issuance
of a policy by an insurance company with full knowl-
edge of all the facts affecting its validity, is tanta-
mount to an assertion that the policy is valid at the
17. Clark v. N. E. Mut. Co., 6 Cush. 342 (Mass.) ; 53 A. D. 44.
INSURANCE 277
time of its delivery and is a waiver of any known
ground of invalidity. From such conduct the insured
might fairly infer, and he has a right to infer that he
is protected. If he did not so infer, it is reasonable
to suppose that he would protect himself by procur-
ing other insurance. It would not be consistent with
fair dealing and honesty for the company to under-
take to avoid its policy under such circumstances
when the assured has rested in the belief that he was
protected, until his property was destroyed, and
when that belief was the result of its conduct18. It is
not easy to perceive why an insurance company, by
reason of the formal words and clauses inserted in
its policy, intended to meet broad classes of contin-
gencies, should ever be allowed to avoid liability on
the ground that facts, of which the company had full
knowledge at the time of issuing the policy, were
then not in accordance with the formal words of the
contract or some of its multifarious conditions. If
such facts are to be held a breach of such a clause,
they are a breach eo instanti of the making of the
contract and are so known to the company as well as
to the insured. And to allow the company to take
the premium without assuming the risk would be to
encourage a fraud. It would, as a legal principle, be
equivalent to holding that the warranty of the
soundness of a horse is a warranty that he has four
legs when one of them has been cut off19.
Sec. 278. An examination of the authorities
discloses greater harmony on this branch of the law
of waiver as applied to insurance contracts than any
18. Dwelllng-House Co v. Brodie, 62 Ark. 11 ; 11 S. W. 1016 ; 4 L.
R. A. 458.
19. Birdwell v. Northwestern Co.. 24 N. Y. 302.
278 THE LAW OF WAIVER.
ether phase. And, indeed, there should be no vari-
ety of opinion among the courts on the matter under
discussion. Only the simple and elementary prin-
ciples of waiver are involved, being the voluntary
surrender or foregoing of a right fully known to him
possessing it. And, once shown that an insurer had a
right to insist upon some condition, warranty or
stipulation at the time of delivering its policy, but
with full knowledge of the facts remained silent or
by any sort of conduct failed to claim such right,
then it will be held to have voluntarily relinquished,
abandoned or waived it and cannot be heard later to
complain20.
(a) CONDITION AS TO TITLE:— Sec. 279.
Remembering that the common rules of agency are
applicable to insurance companies and those employ-
ed by them to solicit and perfect contracts of insur-
ance, it follows that knowledge of the agent of facts
20. Anderson v. Manchester Co., 59 Minn. 182; 63 N. W. 241; 50
A. S. R. 400 ; 28 L. R. A. 609.
Imp. M. Co. v. Mich. Co., 122 Mich. 256 ; 80 N. W. 1088.
Triple Link v. Williams, 121 Aia. 138; 26 So. 19; 77 A. S. R. 34.
Bebee v. Hartford Co.. 25 Conn. 51 ; 65 A. D. 553.
Davis v. Phoenix Co.. 11 Cal. 409 ; 43 Pac. 1115.
Comba v. Hannibal Co., 43 Mo. 148.
Phoenix Co. v. Raddin. 120 U. S. 196; 30 L. Ed. 648.
Wood v. American Co., 149 N. T. 382; 78 Hun 109; 29 N. T.
Supp, 250; 44 N. E. 80; 52 A. S. R. 733.
Patten v. Merchants Co.. 40 N. H. 375.
Hadley v, N. H. Co.. 55 N. H. 110.
Gans v. St. Paul., 43 Wis. 108; 28 A. R. 535.
Eggleston v. Council Bluffs Co., 65 la. 308 ; 21 N. W. 652.
Georgia Home Co. v. Kinnier. 28 Gratt. 88 (Va.).
Niagara Co. v. Johnson. 4 Kans. ADP. 16; 45 Pac. 789.
Commonwealth v. Huntzinger. 98 Pa. St. 41.
Worachek v. New Denmark Co.. 102 Wis. 88 : 78 N. W. 165.
No. Assur. Co. v. Grand View Assoc. 101 Fed. 77 ; 41 C. C. A.
207.
Security Co. v. Tarpey, 182 III 52; 54 N. E. 1041.
Hartford Co. v. Post. 25 Tex. Civ. App. 428 ; 62 S. W. 140.
Aetna Co. v. Olmstead, 21 Mich. 246; 4 A. R. 483.
INSURANCE 275
existing at the time of the issuance of a policy of in-
surance which would render it void is knowledge of
the company. Therefore, even though there is a stip-
ulation in the policy prohibiting a waiver of condi-
tions therein other than by a written endorsement
on such policy, if an agent delivers the policy and re-
ceives the premium therefor with knowledge of a
breach of a condition in the policy respecting the sole
and unconditional ownership of the property, such
condition, or the breach thereof is thereby waived.
And this is true notwithstanding there is a provi-
sion in the policy prohibiting an agent from waiving
any of its conditions in any manner other than by
writing indorsed thereon21. So, the defense that the
insured was not the sole and unconditional owner of
the property cannot be made where it appears that
the agent of the insurer was informed that the true
ownership of the property was in another than the
insured22. Notice to the insurance agent that the in-
sured had only a bond for title is notice to the in-
surer of the condition of the title, and the subsequent
delivery by him of a policy to the insured is a waiv-
er of any breach of condition in such policy as to
title113. And if the insured states in his application
that he holds title by "deed", such statement is suf-
21. Santa Clara etc. v. N. W. Nat. Co.. 98 Wis. 257; 73 N. W. 767;
67 A. S. R. 805.
McMurray v. Capital Co., 87 la. 453 ; 54 N. W. 354.
Breedlove v. Norwich Soc. 124 Cal. 164; 56 Pac. 770.
Batema-n v. Lumbermen's Co., 189 Pa. St. 465 ; 42 Atl. 184.
Dupuy v. Del Co., 63 Fed. 680.
22. Graham v. Fire Ins. Co., 48 S. Car. 195; 26 S. E. 323; 59 A. S.
R. 707.
State Mut. Co. v. Da Tourotte. 71 Ark. 242; 74 S. W. 300; 10»
A. S. R. 63.
23. Germania Co. v. Ashby, 112 Ky. 303; 65 S. W. 611; 99 A. S. R.
295.
280 THE LAW OF WAIVBB
ficient to put the insurer upon inquiry and it cannot
defend an action on the policy where the insured did
not have title in fee as required by the policy24.
Sec. 280. Where the insured told the agent of
the insurer that he owned the building insured but
that it was standing on leased land yet the agent is-
sued and delivered the policy, such was held a waiver
of the condition in the policy that it should be void
if the insured did not own a fee simple title to the
land upon which the building was standing25. So,
the mere failure or neglect of the insured to make
known, without inquiry, facts relating to the title
which the insurer might deem material, is not a
breach of a condition of the policy relating to the
title or liens on same, 'because the assured is entitled
to assume that the insurer will make proper inquiry
afoout all matters it deems material to the risk, and
that it waives knowledge as to all other matters, ex-
cept, possibly, in reference to extraordinary or un-
usual circumstances within the knowledge of the as-
sured ; but of which there is nothing to put the in-
surer upon inquiry26. This proposition, however,
has been denied27.
24. Clawson v. Citizens Co.. 121 Mich. 591 ; 80 N. W. 673 ; 80 A. S.
R. 538.
25. Johnson v. Aetna Co.. 123 Ga. 404; 51 S. E. 339; 107 A. S. R.
92, overruling Thorton v. Travelers Co., 116 Ga. 122; 42 S. E.
287 ; 94 A. S. R. 99 ; Mech. Ins Co. v. Mut. Assoc., 98 Ga. 262 ;
25 S. E. 457.
26. Richards on Insurance. Sec. 136.
Sanford v. Royal Co., 11 Wash. 653 ; 40 Pac. 609.
Short v. Home Co.. 90 N. T. 16 ; 48 A. R. 138.
Morrison v. Tennessee, 18 Mo. 262 ; 59 A. D. 299.
Koshland v. Hartford Co.. 31 Oreg. 402; 49 Pac. 866.
Trade Ins. Co. v. Barracliff. 45 N. J. 543.
Guest v. Ins. Co., 66 Mich. 98 : 33 N. W. 31.
27. Pope v. Glens Falls Co., 136 Ala. 670; 34 So. 29.
INSURANCE 281
Sec. 281. So, therefore, the principle applicable
to the matter under discussion may be stated thus:
The application for insurance usually contains a
representation that the insured is the absolute owner
of the property insured ; the policy contains a clause
to the effect that unless the condition of the title is
truly stated in the application, or the insured is the
unconditional owner, or if the building stands on
leased ground, the policy shall be void ; it is the duty
of the agent of the insurer to make proper inquiry
as to the title, and if he fail to make such inquiry, or
if he know at the time of the delivery of the policy
or if he have knowledge of sufficient facts to put
him on inquiry as to the true state of the title of the
property insured, his knowledge and acts are imput-
able to his principal and the policy will be held valid
even though the condition as to the title has been
broken28.
28. Parsons v. Knoxville Co., 132 Mo. App. 583 ; 34 S. W. 476.
Born v. Home Ins. Co.. 120 la. 299; 94 N. W. 849.
Allen v. Home Co., 133 Cal. 29; 65 Pao. 138.
Germania Co. v. Hick, 23 111. App. 381 ; 125 111. 361 ; 17 N. B.
792 ; 8 A. S. R. 384.
Mutual Co. v. Hammond. 106 Ky. 386; 50 S. W. 545.
Forward v. Continental Co.. 142 N. Y. 382; 37 N. B. 615; 25
L. R. A. 637.
Arthur v. Palatine Co., 35 Oreer. 27 ; 57 Pac. 62 ; 76 A. S. R.
450.
West v. Norwich Co.. 10 Utah, 442 : 37 Pac. 685.
Goss v. AKT. Co.. 92 Wis. 233; 65 N. W. 1036.
Cowell v. Phoenix Co.. 126 N. Car. 684; 36 S. E. 184.
Leach v. Republic Co., 58 N H. 245.
Home Co. v. Gibson. 72 Miss. 58 ; 17 So. 13.
Wagner v. Westchester Co., 92 Tex. 549; 50 S. W. 569.
Medley v. German Alliance Co.. 55 W. Va. 342; 47 S. E. 101.
Home Co. v. Duke. 84 Ind. 253.
Schaeffner v. Farmers Co., 80 Md. 563 ; 31 Atl. 317.
Parsons v. Knoxville Co., 132 Mo. 583 ; 31 S. W. 117.
Cowart v. Capital City Co., 114 Ala. 356 ; 22 So. 574.
282 THE LAW OF WAIVER
(b) CONDITION AS TO ENCUMBRAN-
CES : — Sec. 282. The foregoing remarks anent con-
ditions as to TITLE are equally applicable to pro-
visions that the undisclosed existence of encumbran-
ces at the time of application for insurance shall ren-
der the policy subsequently issued void. If an appli-
cation for fire insurance is oral and no inquiry is
made by the agent of the insurer as to the condition
of the title to the property and the insured says
nothing about the existence of a mortgage thereon,
but does not keep silent through any sinister motive
or with the intention to mislead or deceive the insur-
er, then the fact that when the policy issued there
was a mortgage upon the insured property will not
invalidate the policy notwithstanding the fact that
the policy provides that it shall be void if there ex-
ists an encumbrance by mortgage or otherwise upon
the insured property29. For an applicant for in-
surance is not required to show the exact condition
of his property or its title unless he is requested to
do so; and failure of the insurer to make such re-
quest or inquiry respecting the title is a waiver of
the right to avoid the policy in case encumbrances
exist contrary to the terms of the policy30. The rea-
son for this is that applicants for insurance are not
29. Hanover Co. v. Bohn, 48 Neb. 743 ; 67 N. W. 774 ; 58 A. S. R.
719.
Ins. Co. v. Bachelder, 44 Neb. 549 ; 62 N. W. 911.
Sproul v. West. Co., 33 Oreg. 98; 54 Pac. 180.
Wright v. London Co.. 12 Mont. 474 : 31 Pac. 87.
Aetna Co. v. Holcomb, 89 Tex. 404; 34 S. W. 915.
German Co. v. Nelwedde, 11 Ind. App. 624 ; 39 N. B. 534.
SO. Western Co. v. Home Co., 145 Pa. St. 346; 22 Atl. 665; 27 A. 8.
R. 703.
Hall v. Niagara Co., 93 Mich. 184; 53 N. W. 727; 32 A. S. R.
497.
INSURANCE 283
generally aware of the necessity of disclosures which
long experience in the business of insurance has
shown to underwriters to be necessary, or what
disclosures it is important to make ; while insurance
companies cannot only protect themselves by making
inquiries in regard to such things as they may deem
material, but as is well known, are in the habit of
doing so. If an insurance company elects to issue
its policy without any application or representation
in regard to the title to the property upon which the
insurance is effected, the company cannot complain
after a loss has ensued, that the interest of the as-
sured was not correctly stated in the policy, or that
an existing encumbrance was not disclosed31. A for-
liori, where the insured informs the agent of the in-
surer of the amount of the encumbrances against the
property the condition is not violated if the amount
never exceeds the amount stated32, and the condition
is waived if the agent fails to make mention of the
encumbrances. And it doesn't matter whether the
agent was acting for the insurer or not at the time
he acquired knowledge of the encumbrances; if he
retained a recollection of the fact and had it in mind
when he effected the insurance, that is sufficient to
bind his principal and an issuance of a policy there-
after is a waiver of a breach of condition against
encumbrances33. And where it appeared that an ap-
31. Morotock Co. v. Rodcfer. 92 Va. 747: 24 S. E. 393; 53 A. S. R.
846.
Wood, Fire Insurance. Sec. 233.
82. Gould v. Dwelling House Co., 134 Pa. St. 570 ; 19 Atl. 793 ; 19
A. S. R. 712.
S3. Wilson v. Minnesota Co., 36 Minn. 112; 30 N. W. 401; 1 A. S.
R. 659.
Wade on Notice. Sec. 687.
284 THE LAW OP WAIVEB
plication falsely stated that there were no encum-
brances on the property, but such false answer was
inserted on the advice of the company's agent, the
issuance of a policy thereon was held a waiver of
the breach of condition against encumbrances. The
court -used this language: "The insurers are
chargeable with knowledge possessed by their agent,
and that consequently it was a fraud on their part
to receive the premium moneys and deliver the poli-
cies without intending it should have effect under
such circumstances. Such a fraud the law will not
permit to be consummated; but on the contrary it
will hold that when they delivered the policy it was
with the intention that it should take effect, and that
the insured should have the benefit from it for which
he paid his money ; and if there was any error or am-
biguity in the application which their agent pre-
pared, they must be held, under the circumstances
here appearing, to have waived it"34. And where
the insured stated to the agent that there was an
encumbrance on the property, such fact may be
proved by parol although the policy stated that there
was no encumbrance35.
Sec. 283. The cases are not altogether uniform
in this particular; for it has been held that if the
policy prohibits a waiver by the agent the insured
is bound by the provisions against encumbrances,
and an attempted waiver may not be shown36. And
it is said that if the insured knew at the time that the
answers to interrogatories in the application were
34. Aetna Co. v. Olmstead. 21 Mich. 246: 4 A. R. 483.
85. Boetcher v. Hawkeye Co., 47 la. 243.
36. Hawkins v. Rockford Ins. Co.. 70 Wis. 1 ; 35 N. W. 34.
INSURANCE 285
false he could not enforce the policy even though he
had correctly stated the matter to the agent37. But
such doctrine prevails mainly in those courts where
it is held that statements in an application made by
an agent of the insurer are not to be imputed to the
insurer38, or where the charter of the company pro-
hibits a waiver39.
Sec. 284. But the overwhelming weight of au-
thority is in favor of the principle that if an agent
of the insurer fail to state truly in the application
the facts given him by the insured, or if when mak-
ing the application the agent have knowledge of ex-
isting encumbrances, his knowledge is that of his
principal and a subsequent issuance of a policy is a
waiver of a breach of condition against encumbran-
ces40.
37. Blooming Grove Co. v. McAnerney. 102 Pa. St. 355; 48 A. R.
209.
38. Lowell v. Middlesex Co.. 8 Gush. 127 (Mass.).
Richardson v. Maine Co., 46 Me. 394 ; 74 A. D. 459.
39. Leonard v. American Co.. 97 Ind. 299.
40. Continental Co. v. Chamberlain. 132 U. S. 304; 10 Sup. Ot. R.
87; 33 L. Ed. 341.
London Co. v. Fischer. 92 Fed. 500 ; 34 C. C. A. 503.
MoElroy v. Brit.-Amer. Co., 94 Fed. 990; 36 C. C. A. 615.
Beebe v. Ohio, etc., Co., 94 Mich. 514 ; 53 N. W. 818 ; 32 A. S. R.
519; 18 L. R. A. 481.
Hartford Co. v. McCarthy, 69 Kans. 555 ; 57 Pac. 90.
Breedlove v. Norwich Co.. 124 Cal. 164 ; 56 Pac. 770.
German-Am. Co. v. Yeagley, 168 Ind. 651 ; 71 N. E. 897.
Phoenix Co. v. La Pointe. 17 111. App. 248; 118 111. 384; 8 N. B.
353.
German Co. v. Hayden, 21 Colo. 127: 40 Pac. 453; 62 A. S. R.
206.
Breckenridge v. American Co., 87 Mo. 62.
Vesey v. Commercial Co., 101 N. W. 1074 (S. Dak.).
Botoklrk v. Phoenix Co.. 102 Wis. 13; 78 N. W. 160.
Ring v. Windsor Co.. 51 Vt. 563.
Robbins v. Springfield Co., 149 N. T. 477; 44 N. B. 59.
German Co. v. Gray. 43 Kans. 497 ; 23 Pac. 637 ; 19 A. S. R.
150; 8 L. R. A. 70.
Hornthal v. Western Co.. 88 N. Car. 71.
German Co. v. Everett. 18 Tex. Civ. APD. 514; 46 S. W. 95.
Hartford Oo. v. Harmer, 2 Oh. 6t. 452: 57 A. D. 684.
286 THE LAW OF WAIVER
(c) CONDITION AS TO VACANCY:— Sec.
285. Whether the fact that a house is vacant when in-
sured will render effective a provision in the policy
that it shall be void if the house is vacant, depends
on the knowledge or lack of knowledge by the insur-
er or its agent of such vacancy. If an insurer issue
a policy on property with actual knowledge of itself
or its agent that the premises are vacant, he is es-
topped to allege such defense to an action to recover
for a loss under the policy41. And the provision in
a policy that if at any time during the continuance
of the policy the insured property should become
vacant the insurer should become absolved from all
liability is held to have no application to buildings
that were vacant at the time the policy was issued,
the insurer having notice of the fact42. The cases
are rather uniform on this phase of the law except
in those jurisdictions where knowledge of the agent
is not imputable to the insurer43. But the issuance
of such policy with knowledge of the vacancy is not
a waiver of the continuance of the vacancy beyond
a specified time44.
41. Rochester Co. v. Liberty Ins. Co.. 44 Neb. 537; 62 N. W. 877;
48 A. S. R. 745.
42. Aurora Co. v. Kranlch. 36 Mich. 289.
Short v. Home Ins. Co., 90 N. T. 16; 43 A. R. 138.
43. Prenderg-ast v. Dwelling H. Co., 67 Mo. App. 426.
Blass v. Agrr. Ins. Co., 46 N. T. Supp. 392 ; 18 App. Dlv. 481.
Carr v. Roger Williams Co., 60 N. H. 513.
Liverpool Co. v. McGulre. 52 Miss. 227.
Devme v. Home Co.. 32 W5s. 471.
Queen Co. v. Strauphan. 70 Kans. 186 ; 78 Pac. 447.
Jordan v. State Ins. Co., 64 la. 216 ; 19 N. W. 917.
Lamberton v. Conn. F. Ins. Co., 39 Minn. 130; 39 N. W. 76.
44. Conn. F. Co. v. Tllley, 88 Va. 1024 ; 14 S. E. 851 ; 29 A, S. R. 770.
INSURANCE 287
(d) CONDITION AS TO USE OF PREMI-
SES : — Sec. 286. Most policies of fire insurance pro-
vide that the premises shall not be used for specified
purposes or that designated articles or property
usually deemed hazardous shall not be kept thereon.
The uses forbidden are those which render the risk
greater, and the articles forbidden to be kept are
usually such as gasoline or other inflarnable substan-
ces, gunpowder, dynamite, or other explosives. Such
use of the premises or the keeping of the forbidden
articles thereon renders the condition of the policy
broken and the insured cannot recover thereon after
a loss. This rule, however, is subject to the qualifi-
cation that the insurer must not have known before
or at the time of delivery of the policy that such use
was being made of the premises or that such forbid-
den articles were being kept thereon. If the insurer
had such notice, yet went on and delivered the pol-
icy, and accepted the premium money, the condition
will be held to have been waived. And in this con-
nection again, knowledge of the agent is imputed to
the principal and will be given binding effect45.
(e) CONDITION AS TO PRIOR INSUR-
ANCE : — Sec. 287. Where policies provide that the
existence of other insurance at the time of their is-
sue shall avoid the policies, such provisions are con-
4» Hartley v. Perm. Co.. 91 Minn. 382; 98 N. W. 198; 103 A. S. R
512.
Kruger v. Western Co., 72 Cal. 91 ; 13 Pac. 156 ; 1 A. S. R. 42.
Steers v. Home Co., 38 La. Ann. 952.
Farmers Co. v. Nixon, 2 Colo. App. 265 ; 30 Pac. 42.
State Co. v. Taylor, 14 Colo. 499; 24 Pac. 333; 20 A. S. R. 281.
Imperial Co. v. Shimer. 96 111. 580.
Kenton Ins. Co. v. Downs, 90 Ky. 236; 13 S. W. 882.
Rlvara v. Queens Ins. Co.. 62 Miss. 720.
Peoria Co. v. Hall. 12 Mich. 202.
THE LAW or WAIVER
ditions precedent, and if prior insurance exists at
that time, it renders the policies voidable. But this,
too, is a condition that may be waived, and the waiv-
er may be an express one or evidenced by acts and
conduct sufficient to induce the insured to believe
that the condition would not be insisted upon. And
in this connection, knowledge of facts brought
to the attention of its agent is imputed to the insurer
and binding upon it. Therefore, if at the time of
the issuance of a policy the agent knew of the exist-
ence of prior insurance contrary to the condition of
the policy, and with such knowledge he delivered the
policy and received the premium money, the condi-
tion is waived and the insurer bound46. The knowl-
edge of the agent who had effected the prior insur-
ance is sufficient47. So, waiver occurs where the in-
sured stated to the agent that there was other in-
surance, but signed an application prepared by the
agent stating that there was no previous insurance48.
And a failure by the insured to give notice of other
insurance is not fatal to the validity of the policy
where such other insurance is already known to the
insurer, as the issue of the subsequent policy is a
waiver of the condition against pre-existing insur-
ance49, as is also the accepting of a renewal pre-
46. Putnam v. Common wealth, 4 Fed. 753.
L/ockwood v. Middlesex Co., 47 Conn. 553.
No. Brit. Co. v. Stelffer. 124 111. 81; 16 N. H. §5.
Ly coming Co. v. Barringer. 73 111. 230.
47. Richmond v. Niasara Co.. 7$ N. Y. 230.
48. Am. Ins. Co. v. LuttrelL 89 111. 314.
England v. Westchester Co., 81 Wls. 583 ; 61 N. W. 954 ; 29 A.
S. R. 917.
49. Rowley v. Empire Co., 36 N. T. 550.
Wash. Ins. Co. v. Davison, 30 Md. 91.
Webster v. Phoenix Co.. 36 Wis. 67.
May, Insurance, Sec. 375, citing above authorities.
INSURANCE 289
mium50. And neglect of the insurer to avoid the pol-
icy for an unreasonable time after knowledge of its
right to do so is a waiver of such cause of forfeit-
ure51. It has been held that where a policy con-
tained a provision that it should be void if other in-
surance should not be endorsed on it, that the ex-
istence of other insurance not so endorsed did not
make the policy absolutely void but voidable and
capable of being made valid by the acts or acqui-
escence of the insurer amounting to a waiver52 ; and
want of indorsement of other insurance upon a pol-
icy at the time of its issuance cannot invalidate it
where such other insurance was already known to
the insurer53.
Sec. 288. The rules above announced are not
without dissent. It has been said that the require-
ment that other insurance be endorsed on the policy
is a condition precedent to the right of recovery, and
that mere notice to the agent or verbal communica-
tion to the insurer is not a compliance with this re-
quirement and does not validate the policy54. An
apparent concurrence in this last-named doctrine
may be noticed in a New York case55 ; and in its
favor the Supreme Court of the United States has
50. Carrol v. Charter Oak Co., 1 Abb. Ct. of App. Dec. 316.
51. Fishbeck v. Phoenix Co.. 64 Cal. 422.
City Ins. Co. v. Carrugi, 41 Ga. 660.
Pitney v. Glens Falls Co., 65 N. Y. 6.
52. Atl. Ins. Co. v. Goodhull, 35 N. H. 32S.
53. National Co. v. Crane. 16 Md. 260.
Kenton Ins. Co. v. Shea, et al.. 6 Bush 174 ; 99 A. D. 676.
54. Hutchinson v. Western Co., 21 Mo. 97; 64 A. D. 218.
Barrett v. Union Mut. Co., 7 Gush. 175.
Dietz v. Mound City Co.. 38 Mo. 85.
Bennett v. St. Paul Co., 55 N. J. L. 377; 27 Atl. 641.
€6 Sanders v. Cooper, 115 N. Y. 279; 22 N. E. 212; 12 A. S. R. 801.
200 THE LAW OF WAIVER
lent the weight of its authority56. But in Missouri
and New York courts a change has been made from
their former views and the first-named doctrine has
been adopted57. In fact the greater number of au-
thorities and the weightier ones are in favor of the
principle which sound sense and fair dealing de-
mand, that if an insurer deliver its policy and collect
premiums from the insured, knowing at the time, by
itself or its agent, of the existence of other insurance
contrary to the terms of the policy, compliance with
the condition is waived and the policy is valid with-
out an indorsement of the other insurance upon the
policy68.
(f) CONDITION AS TO "IKON-SAFE"
PROVISION:— Sec. 289. Fire insurance policies
frequently contain what is known as an "Iron-safe
clause" applicable to insurance on stocks of mer-
chandise. This clause requires the insured to keep
the books and last inventories of his business se-
curely locked in a fire-proof safe at night and at all
times when the building containing the goods is not
actually open for business, or to keep such books and
inventories in some place not exposed to a fire which
would destroy the building69. This condition is one
intended to relate not only to the time of executing
W. Carpenter v. Providence Co.. 16 Pet. 512.
No. Assur. Oo. v. Grand View Assoc., 183 U. S. 308 ; 22 Sup. Ct
133.
M. Hay ward v. National Co.. 52 Mo. 181.
Polkingrton v. National Co.. 55 Mo. 172.
Goldwater v. Liverpool Co., 109 N. Y. 618 ; 15 N. B. 895 ; 39 Hun
176.
Stage v. Home Co.. 78 N. Y. Supp. 555; 76 App. Dlv. 509.
§8. Horwitz v. Equitable Co., 40 Mo. 557 ; 93 A. D. 321.
St. Phoenix Co. v. Schwartz, 115 Ga. 113; 41 S. B. 240; 90 A. S. R.
M.
INSUKANCE 291
the policy but also to the whole period during which
it. is in existence. Many cases hold that this condi-
tion, like many others hereinbefore discussed, may
be waived either expressly or by a course of con-
duct inconsistent with any intention to rely upon it.
And these cases hold that if at the time the agent
delivered the policy the books and inventories were
not being kept by the insured in the manner speci-
fied in the policy, and the agent knew such fact but
delivered the policy notwithstanding, such conduct
amounts to a waiver of the condition as the knowl-
edge of the agent is imputed to the principal. The
failure to keep the safe, or the books therein, or out
of the building will not avoid the policy when the
agent of the company soliciting the insurance knew
that there was no such safe ; the reason for this rule
is that such clauses are conditions subsequent that
operate as a forfeiture of the right to compensation
for loss sustained, and the courts will never declare
a forfeiture of a right when there is any reason for
an equitable estoppel from such plea60.
American Co. v. Felder, 44 S. Car. 478 : 22 S. E. 598.
Candy v. Orient Co.. 62 S. Car. 224 ; 29 S. E. 655.
Mesterman v. Home Co.. 5 Wash. 524; 32 Pac. 458; 34 A. S. R.
877.
Anderson v. Manchester Co.. 59 Minn. 182 ; 60 N. W. 1095 ; 63 N.
W. 241: 50 A. S. R. 400.
Miller v. Hartford Co., 70 la. 704; 29 N. W. 411.
Western Co. v. Phelps, 77 Miss. 625; 27 So. 745.
Reid v. Equitable Co.. 17 R. I. 785; 24 Atl. 833; 18 L. R. A. 496.
Roberts v. Continental Co., 41 Wis. 321.
Johnson v. Farmers Co.. 126 la. 565 ; 102 N. W. 502.
Koshland v. Home Co.. 31 Oreg. 321 ; 50 Pac. 567.
Germania Co. v. Heflin, 22 Ky. L. R. 1212 ; 60 S. W. 393.
Niagara Co. v. Johnson, 4 Kans. App. 16 ; 45 Pac. 789.
Spalding v. N. H. Fire Co., 71 N. H. 441 ; 52 Atl. 858.
Osborne v. Phenix Co., 23 Utah 428; 64 Pac. 1303.
Fishback v. Phoenix Co., 54 Cal. 422.
Germania Co. v. Heflin, 22 Ky. L. R. 1212 ; 60 393.
Citizens Co. v. Crist, 22 Ky. L. R. 47 ; 56 S. W. 658.
60. Gernrania Co. v. Ashby, 112 Ky. 303 ; "65 S. W. 611; 99 A. S. R.
295
292 THE LAW OF WAIVER
Sec. 290. An insurance company cannot osten-
sibly contract for keeping an inventory and books
of account in an iron safe, and yet with full knowl-
edge that the insured had not intended to have such
safe, and with full knowledge that such inventory
and books of account had been kept and would be
continued to be kept at the store, to receive the in-
sured's premiums as for a valid policy, the company
intending to deny its validity if a loss should occur.
To sanction such would be to sanction fraud61. The
reasons for holding the company to a waiver in such
case, appeal to us less forcibly than for the waiver
of other conditions in insurance policies. The con-
dition attaches to the policy at the time of its de-
livery and continues during the life of the policy,
and if the insured has been in the habit of keeping
his books and inventories in a manner other than
that provided in the contract of insurance, the ac-
ceptance of the policy with its condition is notice to
him to change his manner of keeping them, and if
he fails to do this, it occurs to us that such is a plain
violation of the conditions of his contract for which
the insurer should not suffer. Some courts lean in
this direction62, but the majority favor the doctrine
that acquiescence by the insured in the breach of the
condition is a waiver of it.
61. Mitchell v. Miss. Home Co., 72 Miss. 53 : 18 So. 86 ; 48 A. S. R.
535.
Rivara v. Queen's Co.. 62 Miss. 720.
Sprott v. N. Orleans Co.. 53 Ark. 215 ; 13 S. W. 799.
Niagara Co. v. Brown, 123 111. 356; 24 111. App. 224; 15 N. E.
166.
Phoenix Co. v. Handle, 81 Miss. 720 ; 33 So. 500.
«2. Morris v. Imperial Co., 106 Ga. 461 ; 32 S. E. 595.
Howers v. Mut. Co., 113 la. 551; 85 N. W. 763.
'rillum v. Fire Assoc., 106 Mo. App. 673 ; 80 S. W. 283.
Roberts Co. v. Sun Co., 13 Tex. Civ. App. 64 ; 35 S. W. 955.
Maupin v. Scottish Co., 53 W. Va. 557 ; 45 S. E. 1003.
INSURANCE 293
(2). BREACH OF CONDITION SUBSEQUENT TO DE-
LIVERY OP POLICY.
(a) CHANGE IN TITLE :— Sec. 291. For the
purpose of influencing the assured to retain the
proper motive to be vigilant in the care of his prop-
erty, most policies insuring property against loss
by fire provide that an alienation of the property
or a change in ownership shall render them void,
unless the insurer consent to such alienation, such
consent to be endorsed on the policy. Such provis-
ion is valid and binding on the assured as he will be
conclusively presumed to have knowledge of the con-
ditions in the policy which he holds. But the pro-
vision is inserted for the benefit of the insurer, and
like all other rights it has, the right to insist on this
provision may be waived by it either expressly or
by any course of conduct calculated to induce the
assured to believe that a forfeiture on account of the
alienation of the property would not be invoked. But
mere notice of a transfer is not sufficient to consti-
tute a waiver, nor is the insurer bound to expressly
disapprove it63. It is otherwise, if after such notice
the insurer receive and retain premiums due on the
policy64. In this, as in other cases of waiver, an
agent of the insurer may assent to a transfer, and
his act will bind his principal65, although it is
thought that such would not be true where the agent
had only the authority to solicit the insurance and
not to collect premiums and otherwise attend to the
company's business. Also the company is bound
where its agent knows of a transfer and assents to
it but fails to indorse such assent on the policy66. So,
63. Girard F. & M. Co. v. Hebard, 95 Pa. St. 45.
64. Millis v. Scottish Co., 92 Mo. App. 211 ; fig S. W. 1066.
65. Fire Ins. Co. v. Bide. Assoc., 43 N. J. 652.
66. Fire Ina Assoc. v. Miller, 2 Tex. Civ. Cases, 333.
294 THE LAW OF WAIVER
a waiver occurs where the agent assents to a corres-
ponding assignment of the policy, and failure of the
company for more than a year after notice of such
assignment to object to the act of the agent in agree-
ing to the assignment is a ratification of his act67.
And where the agent forwarded a policy to the in-
surer for its approval, with knowledge of an alien-
ation by the assured, agreeing that the policy should
remain good until he could procure the assent of the
insurer to the assignment, a forfeiture on account
of the alienation was held waived68. And where a
policy is forfeited by a change in the title of the in-
sured property and the agent of the insurer informs
the person for whose benefit the policy was issued
that the policy will be allowed to stand, the insurer
cannot after a loss declare the policy void09. As was
said above, the same principles governing waivers
of conditions in insurance policies generally are ap-
plicable to the condition under discussion ; and mere
knowledge by the agent issuing the policy or renew-
ing it and receiving the premium, of facts consti-
tuting a breach of the condition, without a prompt
declaration of a forfeiture, is a waiver by him and
by hie principal of the breach of the condition so
known to be broken. This is put upon the ground
that notice to the agent is notice to the principal,
that what the agent knows the company must be re-
garded as knowing ; and that as it would foe a gross
fraud for the company knowingly to receive the pre-
mium for issuing a policy on which it did not intend
67. Benninghoff v. Apr. Ins. Co., 93 N. T. 495.
68. 111. Mut. Co. v. Stanton, 67 111. 354.
69. Pratt t>. N. Y. Cent. Co., 55 N. Y. 505; 14 A. R. 304.
INSURANCE 296
to -be liable and which it intended to treat as void i»
case of a loss, so it is equally a fraud and its fraud
for its agent to do so70.
Sec. 292. If the general agent of an insurance
company applies to an insured to renew his policy
and is informed by the latter that he has contracted
to sell the insured property, has put the purchaser
in possession and received part of the purchase-mon-
ey, giving a full statement of the condition of the
title, and such agent, without written application,
executes and delivers a new policy on the property,
which he states is sufficient to meet the situation, and
receives the premium, the insurer cannot set up a
forfeiture on account of the condition of the title
contrary to the terms of the policy71.
(b) VACANCY :— Sec. 293. It has been held
that when an agent delivers a policy of insurance
constituting a complete contract, his authority over
it or the subject-matter ceases; that he has no au-
thority to modify its provisions nor to waive its
terms; that after delivery of the policy, any knowl-
edge of a breach of its conditions coming to him is
not iniputable to his principal and not binding upon
it. Courts go very far in applying this principle to
the case of a vacancy of the insured premises oc-
curring after the delivery of the policy where there
is a provision that such vacancy shall render the
70. Peoria M. Co. v. Hall, 12 Mich. 214.
Campbell v. Merchants Co., 37 N. H. 48.
71. Virginia etc. Co. v. Richmond Co.. 102 Va. 429; 46 S. E. 462; 10*.
A. S. R. 846.
See: Moffit v. Phenix Co., 11 Ind. App. 233; 38 N. E. 835.
Shuggart v. Lycoming Co., 55 Cal. 408.
296 THE LAW OF WAIVER
policy void72. And further, if an agent has only
authority to solicit insurance and consummate the
same, or to issue the policy, with no authority to
change or waive any of its terms or conditions, any
attempted change or waiver by him after the policy
has been delivered is generally void; and in the ab-
sence of any showing to the contrary, it will gen-
erally be presumed that the assured had knowledge
of the terms and conditions of the policy. Hence,
if the policy provides that the policy shall be void
if the property becomes vacant, without the consent
of an officer of the company indorsed on the policy,
a waiver by the local agent of this condition after
the insurance is effected is unauthorized and ren-
ders the policy void73.
Sec. 294. But while a respectable array of au-
thorities hold to the principles above announced, it
is difficult to see why an agent clothed with authority
to collect premiums falling due, or to assent to a
change in the ownership of the insured property, or
to waive any other condition after the taking effect
of the policy, may not, for the insurer, forego the
benefit of the vacancy clause. Better reasoning, and
many authorities support the doctrine that he may.
Of course, to constitute a waiver, the company must
either itself, or by some act of its agent having ap-
parent or real authority, do or say something that
induces the insured to do or forbear to do something
whereby he is prejudiced74. It is no waiver for the
72. Hartford Co. v. Davenport., 37 Mich. 609.
Harrison -u. City Ins. Co., 9 Allen, 231; 85 A. D. 751.
73. Burlington Co. v. Gibbons, 43 Kans. 15; 22 Pac. 1010; 19 A. S.
R. 118.
74. Weidert v. State Ins. Co., 19 Oreg. 261; 24 Pac. 242; 20 A. S.
R. 809.
INSURANCE 297
agent to tell the assured that the vacancy will inval-
idate the policy or where, knowing of the vacancy
subsequent to delivery of the policy, the agent mere-
ly remains silent75. Still, knowledge of the agent is
knowledge of the insurer, and if the agent knows a
house is vacant at the time of delivering the policy
insuring it, the vacancy clause is waived76; and an
agent may indorse on a policy consent for the prem-
ises to be vacant or he may waive such indorse-
ment77, even though the policy provide that no agent
has power to waive any of its terms.
(c) ENCUMBRANCES:— Sec. 295. Policies
may lawfully provide that no encumbrances shall be
placed on the insured property subsequent to deliv-
ery of the policy, and in such case, a violation of the
provision avoids the policy. But the effect of such
circumstance may be waived by the insurer, express-
ly or impliedly, by itself or its agent. And it is said
that an insurance agent furnished by his principal
with blank applications and policies duly signed by
the company's officers, and who has been authorized
to take risks, to issue policies by simply signing his
name, to collect premiums and cancel policies with-
out consulting his principal, is empowered to waive
conditions of forfeiture in such policies for encum-
brances placed upon the insured property. He may
waive such forfeiture by parol, notwithstanding the
limitation upon his power contained in the policy78.
75. May, Insurance, Sec. 249 H.
76. Sentell v. Oswego Co., 16 Hun 518.
Jordan v. State Co., 64 la. 216.
Vanderhoff v. Agr. Ins. Co., 46 Hun 328.
77. Davey v. Glens Falls Co., 9 Ins. L. J. 499 (Minn.) ; Fed. Cas.
No. 3590.
78. German-Am, Co. v. Humphrey, 62 Ark. 349; 35 S. W. 428; 54
A. S. R. 297.
298 THE LAW OF WAIVEB
An assent by the company to a mortgage on the in-
sured property is, of course, a waiver of the clause
in the policy against subsequent encumbrances. So,
where the insurer had notice of a sale of the prop-
erty and assented thereto and its agent had notice
of a mortgage executed as a part of the purchase-
price, the company was held to have assented to the
mortgage and could not declare a forfeiture on ac-
count of a breach of the condition against encum-
brances79.
Sec. 296. Where the point has been raised, the
courts have generally held that where the agent as-
sents to the encumbrance or does any act leading the
assured to believe that the policy will not be can-
celled for a violation of the condition against en-
cumbrances, the breach is waived80.
(d) MISUSE OF PREMISES:— Sec. 297.
A majority of the courts hold directly that a local
agent of an insurance company authorized, as most
of them are, to solicit insurance, deliver policies and
collect premiums, has no authority to waive a con-
dition prohibiting the use of the premises for desig-
nated purposes. A Federal court has said: "The
fact that a local agent obtained knowledge, after the
execution of the policy, that gasoline was being used
on the premises, contrary to an express promissory
warranty, and his mere silence on the subject do
79. German Tns. Co. v. York, 48 Kans. 488 ; 29 Par. 486 : 30 A. B.
R. 313.
Farmers Ins. Co. v. Ashton, 31 Oh. St. 477.
SO. Bushnell v. Farmers Co., 110 Mo. App. 223; 85 S. W. 10S.
Hardwlck v. State Co., 23 Greg- 290; 31 Pac. 666.
Kenier v. Dwelling H. Co., 74 Wfis. 89 ; 42 N. W. 208.
INSURANCE. 290
not operate as a waiver of such condition, where
the policy provides that he shall have no authority
to change or modify any of its terms. And the
fact that the insurer has the right to cancel the
policy for any unauthorized acts on the part of the
insured raises no obligation to formally cancel the
same; and its failure to do so is no waiver of its
right to rely on the breach81. This is extending the
doctrine to a considerable length, and it is thought
that it conflicts somewhat with the law to be men-
tioned in a succeeding section relating to forfeit-
ures. But a forfeiture created by a breach of a
condition in a policy prohibiting the use of gaso-
line in the building is not waived because the com-
pany's agent, whose authority was limited to so-
liciting insurance, delivering policies and receiving
premiums, consented that the building might be
used as a restaurant which included the use of a
gasoline stove82.
Sec. 298. But a Kansas court has leaned to
the doctrine that a breach of the condition under
discussion may be waived by an agent. But it has
said that to constitute a waiver of conditions as to
the future use of insured premises, there must be
something more shown than mere knowledge o'f
such use on the part of the agent. The language
and conduct of the agent must be such as to rea-
sonably imply an intention on his part to waive
such condition or to consent to such use83. But it
has been held that the company is not bound, even
where the agent expressly consented to the pro-
hibited use of the premises84.
81. West End Hotel v. American Co., 74 Fed. 114.
82. Garretson v. Merchants Co., 81 la. 727; 45 N. W. 1047.
83. Concordia Co. v. Johnson, 4 Kans. App. 7 ; 45 Pac. 722.
84. Western Co. v. Rector, 85 Ky. 294; 3 S. W. 415.
300 THE LAW OP WAIVER.
(e) ADDITIONAL INSURANCE : — S e c .
299. The view is taken by many courts that an
agent vested only with authority to solicit insurance
and deliver policies has no authority to agree that
the assured may procure other insurance on the
same property, and that an express oral assent of
such agent to the procuring of other insurance is
not binding on the company, being contrary to the
terms of the written policy85. Such an agent, it is
held, has no power, after issuing a policy, to violate
a condition therein by agreeing with the assured
without the knowledge of the insurer for additional
irfsurance in another company; notice of additional
insurance to such agent is not notice to his princi-
pal, and it is not bound thereby nor by such oral
agreement of the agent86. "An agent who is only
authorized to solicit and take applications for in-
surance, receive the premiums and deliver the pol-
icy after having been signed by the proper officers,
has no authority, express or implied, to waive a
breach of the policy relating to additional insur-
ance." But it is said in the same case that condi-
tions in a policy of insurance limiting or avoiding
liability are strictly construed against the insurer
and in favor of the insured. The courts, not fa-
voring forfeitures, are usually inclined to take hold
of any circumstances which indicate an election to
85. Union Natl. Bank v. German Ins. Co., 34 U. S. 397; 71 Fed. 473;
18 C. C. A. 203.
86. Taylor v. State Ins. Co., 98 la. 521; 67 N. W. 577; 60 A. S. R.
210.
German Ins. Co. v. Heiduk, 30 Neb. 288; 46 N. W. 481; 27 A. S.
R. 402.
Gray v. German Co., 155 N. Y. 180 ; 49 N. E. 675.
Bourgeois v. Mutual Co., 86 Wis. 402; 58 N. W. 38.
Robinson v. Fire Assoc., 63 Mich. 90; 29 N. W. 521.
Hale v. Mech. Co.. 6 Gray 169; 66 A. D. 410.
Allemanla Co. v. Kurd, 37 Mich. 11; 26 A. R. 491.
INSURANCE. 301
waive the forfeiture. A waiver may be created
by acts, conduct or declarations insufficient to cre-
ate a technical estoppel. If the company, with
knowledge of the breach, enters into negotiations
or transactions with the assured which recognize
and treat the policy as still in force, or induces
the assured to incur expense or trouble, it will be
regarded as having waived the right to a forfeit-
ure87.
Sec. 300. A policy in a Michigan case pro-
vided that the agent of the insurer had no author-
ity to waive, modify or strike from the policy any
of the printed conditions, and procuring addi-
tional insurance rendered the policy void unless
the consent of the company was written on the pol-
icy. The insured obtained further insurance upon
the statement of the company's agent that it would
make no difference in his policy. The court held
the act of the agent no waiver of the condition,
saying that he had no right to contract with the
assured so as to change the conditions of the pol-
icy or to dispense with the performance of any es-
sential requisite contained therein, either by parol
or in writing; and the holder of the policy is es-
topped by accepting it from setting up or relying
upon powers in the agent in opposition to limita-
tions and restrictions in the policy88. The hold-
87. Queen Ins. Co. v. Young, 86 Ala. 424; 5 So. 116; 1 A. S. R. 55.
citing.
Titus v. Glens Falls Co., 81 N. T. 410.
Bartholomew v. Merchants Co., 25 la, 507.
Hamilton v. Aurora Co., 15 Mo. App. 59.
Liverpool Co. v. Sorsby, 60 Miss. 302.
88. Cleaver v. Traders Co., 65 Mich. 527 ; 32 N. W. 660 ; 8 A. S. R.
908, citing:
Merseran v. Phoenix Co, 66 N. Y. 274.
Catoir v. American Co., 33 N. J. L. 487.
But see this case cited infra this subdivision.
302 THE LAW OF WAIVER.
ings of the courts upon this subject, however, are
far from uniform. But an examination of the
cases will disclose that the difference between the
two lines of authorities turns more upon the con-
struction of the clause restricting the authority of
an agent and upon determining how far his acts
shall be binding upon the company, since it is
usually his acts that are involved, than it does upon
establishing a principle of waiver by the insurer.
However, a less reconcilable position is taken by
the courts on the effect of a failure to endorse on
the policy a consent to additional insurance where
the policy requires such indorsement to make the
consent binding on the insurer.
Sec. 301. We think that the better and more
reasonable rule, and the one sustained by the
weight of authority is that an agent authorized to
solicit insurance, countersign and deliver policies
and collect premiums, may consent to the procuring
of additional insurance and that such consent
amounts to a waiver of a clause in the policy pro-
hibiting the procuring of further insurance and
that such waiver is binding on the insurer whether
indorsed on the policy or not89. As is said in May
on Insurance, Art. 370: While the old rule re-
quired the consent to be in writing and endorsed
on the policy, it is the decided tendency of the mod-
ern cases to hold that if notice of the additional in-
surance be duly given to the company or its agent,
and no objection is made, the company will be es-
topped from insisting on a forfeiture of the policy
because their consent thereto was not indorsed as
literally required by the stipulation. Knowledge
of other subsequent insurance and conduct in-
39. Crescent Ins. Co. v. Griffin, 59 Tex. 509.
INSURANCE. 303
ducing the insured to believe that the first policy
is still valid, constitute a waiver of the clause
against additional insurance90. So, if no objection
is made for a reasonable time after knowledge of
the additional insurance comes to the company or
its agent, the clause is waived91, as silence is
deemed a waiver92, and such a delay for three
months has been held sufficient93. A statement by
an agent to the insured after knowledge of addi-
tional insurance that the former policy is all right,
is a waiver of the forfeiture clause94.
Sec. 302. Speaking on the subject under dis-
cussion, a Texas court has well expressed the prin-
ciples herein announced. "Subsequent insurance
did not ipso facto annul the policy, but the com-
pany might elect to give it that effect, or might
waive it. Having knowledge of the facts, it was
the duty of the company to manifest its intention
as to this promptly, and having failed to do so, it
ought to be held to have waived the right to treat
the policy as null, when it knew that by the act
of its own agent the insured had been led to believe
that the policy was in full force. It is not so much
by the force of the fact that the agent gave a
verbal consent to the subsequent insurance that the
appellee should be held bound, as because the com-
pany itself must be held, having knowledge of what
he had done, to have ratified the consent given by
him, though it may not have been given in the man-
ner prescribed by the policy. If the policy limited
the power of the agent, it implied no limitation of
90. Martin v. Jersey City Co., 44 N. J. 273.
91. Crescent Co. v. Griffin, supra.
92. Phoenix Co. v. Spiers, 87 Ky. 285.
91. Planters Co. v. Lyons, 38 Tex. 253.
94. Combs v. Shrewsbury Co., 34 N. J. Eq. 403.
304 THE LAW OF WAIVER.
the power of the company itself, and, as said by the
supreme court of Michigan, in considering a condi-
tion in a policy similar to those found in the policy
before us: 'The condition, literally applied, would
prevent any unindorsed consent by the company it-
self, by instructions of its board, or by act of its
officers, as effectually as by any one else. And the
case seems to settle down to the simple question
whether a person, who has agreed that he will only
contract by writing in a certain way, precludes
himself from making a parol bargain to change
it. The answer is manifest. A written bargain is
of no higher legal degree than a parol one. Either
may vary or discharge the other, and there can be
no more force in any agreement in writing not to
agree by parol than a parol agreement not to agree
in writing. Every such agreement is ended by the
new one which contradicts it' "95. When the com-
pany remains passive after knowledge of addi-
tional insurance, the insured rests in security that
he is protected and is deprived of an opportunity
of fully protecting himself by obtaining insurance
elsewhere. To permit a forfeiture after such pas-
siveness is to legalize fraud and unfair dealing96.
The insured must show that the agent has done
some act or made some representation or remained
silent when he ought to have spoken, and thereby
misled the insured and induced him to rely on the
policy. But when such facts are shown they amount
to a waiver97. If the indorsement is not made upon
95. Morrison v. Insurance Co., 69 Tex. 353 ; 6 S. W. 605 ; 5 A. S. R.
63, citing:
Westchester Co. v. Earle, 33 Mich. 143.
American Co. v. McCrea, 8 Lea 513; 41 A. R. 647.
96. Swedish Co. v. Knutson, 67 Kans. 71 ; 72 Pac. 526 ; 100 A. S,
R. 382.
37. Westchester Co. v. Earle, 33 Mich. 143.
INSURANCE. 305
notice duly given of subsequent insurance, a waiver
will be presumed in the absence of any dissent.
Sec. 303. If a party by his silence directly
leads another to act to his injury, he will not be
permitted, after the injury has happened, to then
allege anything to the contrary, for he who will not
speak when he should will not be allowed to speak
when he would98. • In an extremely carefully con-
sidered case in Wyoming, it is held that if a gen-
eral insurance agent who issues the policy in suit
has knowledge of, and consents to additional in-
surance, but fails to indorse such consent on the
policy, and through neglect fails to notify his com-
pany thereof, and its adjuster, after a loss and
with knowledge of such additional insurance, and
without objection thereto seeks to adjust the loss,
the company is estopped to insist on a forfeiture
by reason of such additional insurance". And fail-
ure of an insurer to cancel its policy after receiving
notice of a breach of the condition against addi-
tional insurance is evidence from which a waiver
of the right of forfeiture may be inferred, espe-
cially when an attempted cancellation of the policy is
based upon another ground of forfeiture100. So,
collecting premiums after knowledge of such a
breach is a waiver1. Upon a second appeal of the
98. Pelkington v. National Co., 55 Mo. 176.
Horwitz v. Equitable Co., 40 Mo. 557 ; 93 A. D. 321.
Gans v. St. Paul Co., 43 Was. Ill ; 28 A. R. 535.
99. Kahn v. Traders Ins. Co., 4 Wyo. 419 ; 34 Pac. 1059 ; 62 A. S. R.
47.
2 May, Insurance 370.
Carrugi v. Atlantic Co., 40 Ga. 140 ; 2 A. S. R. 567.
Weed v. London Co., 116 N. T. 106; 22 N. E. 229.
100. Phoenix Ins. Co. v. Holcomb, 57 Neb. 622; 78 N. W. 300; 73 A.
S. R. 532.
Slobdisky v. Phoenix Co., 52 Neb. 395 ; 72 N. W. 483.
1. liutz v. Anchor Co., 120 la. 136 ; 94 N. W. 274 ; 98 A. S. R. 149,
dtlng:
Ruthven v. American Co., 102 la. 550 ; 7 N. W. 574.
306 THE LAW OF WAIVER.
case of Cleaver v. Trader's Ins. Co., cited in sec-
tion 300 hereof, it is held that the insurer waives
a breach of this condition when, after notice, it
fails to notify the insured of its intention to insist
upon a forfeiture2. Such, we think, is the better
rule3.
C. PAYMENT OF PBEMIUM—
(1) BEFORE DELIVEEY OF POLICY—
(a) IN GENERAL:— Sec. 304. It is customary
among insurance companies to authorize their
agents who solicit insurance and deliver policies,
to collect the premiums due therefor. The usual
form of policy so delivered provides that it shall
not take effect until the actual payment of such
premium, or that it shall be void in case payment
shall not be made as it provides. Such provisions
are solely for the benefit of the insurer and are
valid and such as it has a right to insist upon. The
insured is bound to take notice of this condition, and
in the absence of any extenuating circumstances he
fails to comply with it at his peril. But like any
other similar right belonging to the insurer, prepay-
ment of the premium may be waived by it, and here,
too, a waiver may be shown by evidence of any
2. Cleaver v. Traders Ins. Co., 71 Mich. 414; 39 N. W. 571; IB A.
S. R. 275.
3. Grubbs v. N. Car. Home Co.. 108 N. Car. 472; 13 S. E. 236; 23
A. S. R. 62.
Oshkosh v. Germania Co.. 71 Wis. 545; 37 N. W. 819; 5 A. S.
R. 233.
Fishbeck v. Phoenix Co., 54 Cal. 422.
Penn F. Co. v. Kittle, 39 Mich. 51.
Mut Co. v. Ward, 95 Va. 231; 28 S. E. 209.
Bigelow v. Granite Co., 94 Me. 39; 46 Atl. 808.
Rathbone v. City Co., 31 Conn. 193.
Thompson v. Traders Co., 169 Mo. 12; 68 S. W. 889.
West v. Norwich Co., 10 Utah 442 ; 37 Pac. 685.
Schomer v. Hekla Co., 50 Wis. 575 ; 7 N. W. 544.
Henschel v. Oregon Co., 4 Wash. 476 ; 31 Pac. 332, 765.
Phoenix Co. v. Johnston, 143 111. 106 ; 32 N. E. 429.
INSURANCE. 307
words or acts manifesting an intention not to in-
sist on such payment, or misleading the insured
into a belief that his policy is valid and subsisting
even though it is not paid for according to its pro-
visions. And such waiver may be made either
orally or in writing by a regular agent of the com-
pany authorized to collect premiums, notwithstand-
ing a statement in the policy that no agent shall
waive any condition unless such waiver be indorsed
on the policy.
Sec. 305. An express provision in a policy of
insurance that the company shall not be liable on
the policy until the premium be actually paid is
waived by an unconditional delivery of the policy
to the assured as a completed and executed contract
under an express or implied agreement that a credit
shall be given for the premium and in such case the
company is liable for a loss which may occur during
the period of the credit4. And the assured is not
bound to take notice of conditions in the policy that
the premium must be actually paid, nor of the pro-
vision that the waiver of condition must be indorsed
on the policy when the policy is executed and de-
livered to him as a valid and completed contract by
an agent having authority to countersign, and who,
before or at the time of delivery of it has given
the assured credit by parol; and if a loss occurs
before the credit expires, the company is bound not-
4. Farnum v. Phoenix Co., 83 Cal. 246 ; 23 Pac. 869 ; 17 A. S. R.
233, citing:
Boehen v. Williamsburg Co., 35 N. Y. 131; 90 A. D. 787.
Church v. Lafayette Co., 66 N. Y. 222.
Latoix v. Germania Co., 27 La. Ann. 113.
Miss. Val. Co. v. Neyland, 9 Bush 439.
Heaton v. Manhattan Co., 7 R. I. 506.
Eagan v. Aetna Co., 10 W. Va. 583.
O'Brien v. Union Mut. Co., 22 Fed. 586.
Knickerbocker Co. v. Norton, 96 U. S. 234.
308 THE LAW OF WAIVEB.
withstanding the agreement for credit was not in-
dorsed on the policy5. It will be seen, however,
that in such cases it is the act of delivering the
policy evidencing an intention that it shall take ef-
fect as a contract of insurance which constitutes the
waiver, for in the absence of such delivery and in-
tent there can be no waiver. Up to the time of such
delivery the agreement for credit is merely a per-
sonal one between the agent and the assured which
the former may cancel at any time before consum-
mation of the contract by delivery of the policy6.
Sec. 306. And the delivery of a policy without
condition and without exacting payment of the
premium in cash raises a presumption that credit
was given7. It is said that a contract of insurance
is complete when the assured makes application for
insurance, the application is accepted, the policy
filled out in duplicate, and the applicant's name en-
tered on the books of the company as being insured ;
and if he is not required at that time to pay the
premium, or notified of a stipulation in the policy
requiring such payment as a condition precedent to
its binding force upon the company, the latter will
be deemed to have waived such condition8, and the
practice or general usage of the company not to re-
quire payment at the time of delivery may be shown
6. Id.
Young v. Hartford Co., 45 la. 377; 24 A. R. 784.
Wright v. Hartford Co., 36 Wis. 522.
Sheldon v. Conn. Mut. Co., 25 Conn. 207.
Griffith v. N. Y. Life, 101 Cal. 627 ; 36 Pac. 113 ; 40 A. S. R. 96.
6. Griffith v. N. Y. Life, supra.
1. Am. Emp. Co. v. Fordyce, 62 Ark. 562 ; 36 S. W. 1051 ; 54 A. S.
R. 305.
Boehen v. Williamsburg Co., 35 N. Y. 121; 90 A. D. 787, citing:
Behler v. German Mut. Co., 68 Ind. 347.
Miller v. Life Ins. Co., 12 Wall. 303.
Little v. Ins. Co., 38 Oh. St. 110.
8. Pino v. Merchants Mut. Co., 19 La. Ann. 214 ; 92 A. D. 529.
. INSURANCE. 309
to establish such waiver9; but the rule permitting
proof of waiver by showing a general custom to de-
liver policies without pre-payment of the premium
has been denied10. Where it is the custom of insur-
ance companies to give their agents time to pay
over premiums on policies, and the agent to credit
the insured therefor, the insured becoming indebted
to the agent and the agent in turn to the company,
a payment according to such custom, even after a
loss, will be valid, and the condition declaring the
policy void for non-payment of the premium will be
held waived11.
Sec. 307. The views herein expressed are not
without dissent. A comparatively late case in New
York has held to the contrary, but the turning point
in the case appears to be the fact that the condition
making payment of the premium precedent to the
taking effect of the policy and limiting the author-
ity of agents was contained in the application of the
insured which was signed by him, and thus brought
to his notice at the very inception of his dealing
with the insurer12. But insurance, as well as any-
thing else, may be sold on credit13, and the great
preponderance of authority supports the proposi-
9. Id.
Helme v. Phila. L. Co., 61 Pa. St. 107.
Gerard v. Mut. Co., 86 Pa. St. 236.
Baxter v. Massoit Ins. Co., 13 Allen, 320.
Union Cent. Co. v. Pottker, 33 Oh. St. 459.
Mayer v. Mut. Co., 33 la. 344.
10. Busby v. N. A. Ins. Co., 40 Md. 572.
Candee v. Citizens Co., 4 Fed. 143.
Mandego v. Cent. Ins. Co.. 64 la. 134 ; 17 N. W. 656 ; 19 N. W.
877.
11. Lebanon Mut. Co. v. Hoover, 113 Pa. St. 591 ; 8 Atl. 163 ; 57 A.
R. 511.
12. Russell v. Prudential Co., 176 N. Y. 178 ; 68 N. E. 252 ; 98 A. S.
R. 657.
13. Wood on Insurance, Sec. 28.
May on Insurance, Sec. 360 D.
Insurance Co. v. Colt, 20 Wall. 560.
310 THE LAW OF WAIVER.
tion first stated, that the condition in a policy of in-
surance that the policy shall not become effective
till the premium is paid and denying to agents the
authority to waive any of its conditions other than
by written endorsement on such policy, may be
waived by the agent of the company and that such
waiver occurs when the policy is delivered to the in-
sured without exacting payment of the premium14.
<2) AFTEE DELIVERY OF POLICY-
(a) THEORY THAT PAYMENT AT MA-
TURITY MAY BE WAIVED:— Sec. 308. While
there is some dissent from the proposition, the de-
cided weight of authority is to the effect that where
a policy has been in existence as a binding contract
of insurance, payment of the premium, or an install-
ment thereof falling due thereafter, may be waived
by the company or its authorized agents, even in the
face of a provision in the policy that failure to make
payment at its maturity shall render the policy
void. When such waiver occurs, the insurance re-
mains in force, and a variety of facts and circum-
stances have been held sufficient to produce this re-
sult. Thus, where an insurer issued a circular to
the effect that it would not insist on a forfeiture for
non-payment of interest on a premium, such notice
14. Washoe Mfg. Co. v. Hibemia Co., 66 N. Y. 613; 7 Hun. 74.
Universal Co. v. Blo^fc, 109 Pa. St. 535.
Equitable Co. v. McCrea, 6 Lea 541 (Tcnn.).
Carson v. German Co., 62 la. 433 ; 17 N. W. 650.
Tenant v. Traveler's Co., 31 Fed. 322 (Col ).
East Tex. v. Mims, 1 Tex. Civ. Cas., Art. 1323.
Gosch v. State Mutual, 44 111. App. 263.
Kerlin v. Natl. Assoc., 8 Ind. App. 628; 36 N. E. 156.
Stepp v. Nat'l. Assoc:. 37 S. C. 417 ; 16 S. E. 134.
Wytheville Co. v. Feiger, 90 Va. 277; 18 S. E. 195.
Ball Co. v. Aurora Co., 20 Fed. 232.
Jones v. Aetna Co., Fed. Cas. 7453.
Potter v. Phoenix Co., 63 Fed. 382.
Daft v. Drew, 40 111. App. 266.
INSURANCE. 311
constituted' a waiver of any right to a forfeiture for
failure to make such, payment15. So, consent of the
insurer to an extension of time to make payment is
a waiver16, as is an acceptance of payment of part
of an over-due premium17. And any act or conduct
on the part of the insurer leading the insured to be-
lieve that the strict letter of the condition in the
policy as to payment of the premium is not to be in-
sisted upon is sufficient to constitute a waiver of
prompt payment18. In determining whether a
waiver has occurred, the test is whether an insurer,
by his course of dealing with the assured, or by the
acts or declarations of his authorized agents, has
produced in the mind of the assured an honest be-
lief that the terms and conditions of the policy de-
claring a forfeiture in the event of non-payment on
the day and in the manner prescribed, will not be
enforced, but that payment will be accepted on a
subsequent day or in a different manner ; and where
there is such belief, and the assured has acted upon
it, the insurer will be estopped from insisting upon
a forfeiture19. So, the issue of a certificate after an
assessment is in default is a waiver of the right to a
forfeiture for its non-payment20. An acceptance of
15. Robinson v. St. Louis Mut. Co., 7 Rep. 358 (Mo.).
16. Homer v. Guardian Co., 67 N. Y. 478.
17. Hodson v. Guardian Co., 97 Mass. 144; 93 A. D. 73.
Spitz v. Mutual Co., 25 N. Y. Supp. 469.
18. So. Ins. Co. v. McCain, 96 U. S. 84.
Appleton v. Phoenix Co., 59 N. H. 541.
Hastings v. Brooklyn Co., 138 N. Y. 473 ; 31 N. B. 289.
Steele v. Ins. Co., 3 Mo. App. 207.
Protection Co. v. Poote, 79 111. 361.
Insurance Co. v. Tullidge, 39 Oh. St. 240.
Insurance Co. v. Eggleston, 96 U. S. 572.
Phoenix Co. v. Doster, 106 U. S. 30 ; 1 Sup. Ct. R. 18 ; 27 L. Ed. 65.
Cotton States Co. v. Lester, 62 Ga. 247.
Home Prot. Co. v. Avery, 85 Ala. 348 ; 5 So. 143.
19. Bacon: Benevolent Soc. Etc., Art. 433 and cases cited.
20. Id.
Roswell v. Equitable, 13 Fed. 840.
312 THE LAW OF WAIVER.
a past-due payment is, of course, a waiver of any
breach of condition as to payment known by the in-
surer at the time21 ; although such acceptance is not
a waiver where the breach is unknown to the in-
surer at the time22.
Sec. 309. An ingenious attempt has been made
in some policies to avoid a waiver of non-payment
of a premium on account of acceptance of past-due
premiums by a statement in the policy that such ac-
ceptance shall be considered as an act of grace or
courtesy on the part of the insurer and not binding
as to future payments. This ingenuity has fallen
short of its mark, and courts still hold the insurer
to a waiver23.
Sec. 310. A harder question to determine, how-
ever, is whether the agent had authority to waive
the time of payment of the premium. For it is said
that the fact that the agent solicited the insurance,
delivered the policy and collected the original pre-
mium does not impliedly give him power to waive a
forfeiture for non-payment, even if he had author-
ity to collect the subsequent premiums24. This prin-
ciple was declared in an Iowa case25. But there a
21. Mershon v. National, 34 la. 87.
Phoenix Co. v. Lansing, 15 Neb. 494; 20 N. W. 22.
Pomeroy v. Rocky Mt. Co., 9 Colo. 295 ; 12 Pac. 153.
McGurk v. Met. Co., 56 Conn. 528 ; 16 Atl. 263.
Rice v. N. Eng. Soc., 146 Mass. 248 ; 15 N. E. 624.
Painter v. Ind. Assoc., 131 Ind. 68 ; 30 N. E. 878.
Met. Co. v. Windover, 137 111. 417; 27 N. E. 538.
Proelich v. Atlas Co., 47 Mo. 406.
22. Gilbert v. N. Am. Co., 23 Wend. 43.
Robertson v. Met. Co., 88 N. Y. 541.
McDonald v. Sup. Council, 78 Cal. 49 ; 20 Pac. 41.
23. American Co. v. Green, 57 Ga. 469.
Thompson v. St. Louis Co., 52 Mo. 469.
24. Met. Co. v. McGrath, 52 N. J. L. 318; 19 Atl. 386.
Union Co. v. McMullen, 24 Oh. St. 67.
Lewis v. Phoenix Co., 44 Conn. 72.
Maryland v. Royal Co., 71 Pa. St. 393.
25. Critchett v. Am. Ins. Co., 53 la. 404 ; 5 N. W. 543 ; 36 A. S. R.
230.
INSURANCE. 313
dissenting opinion was entered by Beck, J., wherein
better reasons were given, in the writer's opinion,
than those held to by a majority of the court. In
the dissenting opinion it was said : ' ' The agent was
authorized to collect the premiums. It cannot be
doubted that if the plaintiff had paid to the agent
the premium after default, the policy would have
again attached. The agent could have enforced the
payment under the terms of the policy. Thus far
he was clothed with authority upon the exercise of
which, at his discretion, depended the binding force
of the policy. His authority to collect the premium
could be exercised in such a manner and at such
times as the interest of the defendant, determined
by the agent, required. Surely the authority to col-
lect the premium was not so limited that it could not
have been exercised after a default by the plain-
tiff."
Sec. 311. The rule is general among the courts,
however, that if an agent collect a premium after it
is due and forward it to the company which accepts
it with knowledge that it is over-due and that a for-
feiture for that reason might be invoked, such act of
the agent is a waiver of the delay in payment, and
the acceptance by the company is a ratification of
the waiver. And in such case it is of no consequence
whether or not the agent had power to waive the
condition in the first instance26.
(b) BY CUSTOM:— Sec. 312. The decisions
are inharmonious as to whether evidence of a cus-
tom or practice among insurance companies to re-
ceive payment of premiums after their maturity
26. Walls v. Home Ins. Co., 114 Ky. 611; 71 S. W. 650.
Piedmont Co. v. Lester, 59 Ga. 812.
Cronln v. Fire Assoc., 119 Mich. 74 ; 77 N. W. 648.
Chicago Co. v. Ford, 104 Tenn. 533; 58 S. W. 239.
314 THE LAW OF WAIVER.
may be shown to establish a waiver of a breach of
the condition as to such payment. It is thought,
however, that one of the main ingredients which
permeates the whole field and phase of the law of
Waiver is applicable here : That any conduct of one
party calculated to lull the other into a feeling of
security and belief that a right of the former would
not be insisted upon may be shown to establish a
waiver of that right. So, if the practice of the com-
pany and its course of dealings with the assured
and others known to the assured have been such as
to induce a belief that so much of the conduct as
provided for a forfeiture in the event of non-pay-
ment of the premium will not be insisted upon, the
company cannot urge a forfeiture for such non-pay-
ment27. This is especially true if the company has
been in the habit of accepting and retaining belated
payment of premiums28, although it is held other-
wise if such acceptance is conditional29.
Sec. 313. There are a few cases holding con-
trary to the foregoing principles30, but the weight
27. 2 May, Insurance, 361.
Lebanon Mut. Go. v. Hoover, 113 Pa. St. 591 ; 8 Atl. 163.
Frankle v. Pa. Fire Co., 12 Ins. L. J. 614 (Col.).
28. Stylow v. Wisconsin Co., 69 Wis. 224; 34 N. W. 151.
Longbridge v. la. Mut., 84 la. 141; 50 N. W. 668.
Grossman v. Mass. B. A., 143 Mass. 435 ; 9 N. E. 753.
Spoeri v. Mass. B. A., 39 Fed. 752.
McCorkle v. Tex. Ben. A., 71 Tex. 149; 8 S. W. 516.
Odd. F. Assoc. v. Swetzer, 117 Ind. 97; 19 N. E. 722.
Brooklyn Co. v. Bledstone, 25 Ala. 538.
Appleton v. Phoenix Co., 59 N. H. 541.
Ala. Gold Co. v. Garmany, 74 Ga. 51.
Helme v. Ins. Co., 61 Pa. St. 107.
Mound City Co. v. Twining, 19 Kans. 349.
Hartford Co. v. Nussell, 144 U. S. 439; 12 Supt. Ct. R. 617; 36
L. Ed. 496.
29. Lewis v. Phoenix Co., 44 Conn. 73.
30. Mandego v. Centen. Co.. 64 la. 134 ; 17 N. W. 656 ; 19 N. W. 877.
Brown v. Mass. Mut., 59 N. H. 298.
Ormond v. Ins. Co.. 96 N. Car. 158 ; 1 S. E. 796.
Hambleton v. Home Co., 6 Biss. 94 (U. S.).
INSURANCE. 315
of authority is so decided that it is not deemed ad-
visable to take further note of these.
(3) WAIVER OF CASH PAYMENT :— Sec.
314. A general agent of an insurance company,
whose business it is to solicit applications for in-
surance and receive first premiums, has the right
to waive the condition requiring payment in money,
and to accept the promissory note of the applicant
or of a third party in lieu thereof, or to undertake
to make payment to the company himself ; and when
the cash payment is actually waived in either of
these modes, the contract binds the company not-
withstanding the recital in the policy that it is not
binding until the first premium is paid in cash31.
And an agent authorized to collect premiums may
exercise his discretion in such collection and accept
a check or note in lieu of money and thereby the
company will be bound even in the face of a con-
trary provision in the policy32. There is no good
reason why insurance may not be sold on credit the
same as any other property. And where a policy is
delivered without exacting payment, the assumption
is that credit is extended and the policy is valid33,
even contrary to the express provision in the pol-
icy34.
31. Valley Life Co. v. Neyland. 9 Bush 430.
Insurance Co. v. Colt, 20 Wall. 560.
Bragdon v. Ins. Co.. 42 Me. 262.
Wood v. Poughkeepsie Co., 32 N. T. 619.
32. Taylor v. Merchants Co., 9 How. 390 (U. S.).
33. Latoix v. Germania Co.. 27 La. Ann. 113.
Miller v. Insurance Co., 12 Wall. 285.
Insurance Co. v. Colt, 20 Wall. 560 (U. S.).
84. Home Co. v. Oilman. 112 Ind. 7 : 32 N. E. 118.
Mut. Ben. Co. v. French, 30 Oh. St. 240.
Pitt v. Berkshire Co.. 100 Mass. 500.
Mowry v. Home Co., 9 R. I. 346.
316 THE LAW OF WAIVEB.
3. FORFEITURES—
A. IN GENERAL:— Sec. 315. The conditions
inserted in an insurance policy and hereinbefore
considered are for the benefit of the insurer and
may be insisted upon by it and performance to their
strict letter exacted. Any default in compliance
with such conditions renders the policy void — not
ipso facto void but according to the better view, the
insurer has the right to declare it no longer in force.
Forfeitures are odious to the law and will never be
enforced unless there is the clearest evidence that
such was the intention of the parties. And if an in-
surance company, after knowledge of any default
for which it might terminate the contract of insur-
ance, enters into negotiations or transactions with
the assured which recognize the continued validity
of the policy, and treat it as still in force, the right
to claim a forfeiture for such previous default is
waived35. So, the majority of the courts hold that
it is the duty of the insurer to take action when a
cause for forfeiture comes to its knowledge, and
that it must use reasonable diligence in manifesting
an intention to rely on the forfeiture. And if it
fails to notify the insured that it elects to hold him
to the forfeiture, its lack of such action may right-
fully be taken by the insured as conclusive of the
fact that the forfeiture is not to be insisted upon.
So, if a company accept payment of premiums after
knowledge of its right to declare a forfeiture, the
35. Conigland v. N. Car. Co., Phill. Eq. 341 ; 98 A. D. 89.
Murray v. Home Ben. AB.( 90 Cal. 402; 27 Pac. 309; 25 A. S. R.
133, citing:
Viele v. Germania Co.. 26 la. 9 : 96 A. D. 83.
Queen Ins. Co. v. Young, 86 Ala. 424; 11 A. S. R. 51 ; 5 So. 116.
Titus v. Glens Falls Co., 81 N. T. 419.
INSURANCE. 317
forfeiture is thereby waived36. This effect also fol-
lows a failure to cancel a policy for a reasonable
time after knowledge of a cause for forfeiture has
been brought home to the insurer37.
Sec. 316. It has been held, however, that a
breach of any of the conditions of a policy by the
insured ipso facto annulled the insurance in the ab-
sence of any affirmative action of the insurer to re-
vive it38. But such doctrine is not well reasoned nor
well supported. In this connection, as in the waiver
of any condition as before considered, knowledge
of a cause for declaring a forfeiture brought home
to an agent is imputed to his principal, and is bind-
ing upon it39.
B. INDORSEMENT OF WAIVER ON POL-
ICY : — Sec. 317. Policies of insurance provide that
no waiver shall be binding upon the insurer unless
by indorsement of same on the policy. Much dif-
ficulty has been experienced by the courts in deter-
mining whether a cause for forfeiture may be
waived in any other manner in the face of this pro-
vision. It was early held in California that it could
36. Ins. Co. v. Norton, 96 U. S. 234.
Nat'l. Assoc. v. Jones, 84 Ky. 110.
Germania Co. v. Hick, 125 111. 351 ; 17 N. E. 792 ; 8 A. S. R. 384.
Bankers Assoc. v. Stapp, 77 Tex. 517; 14 S. W. 168; 19 A. S. R
772.
Millard v. Sup. Council, 81 Cal. 340; 22 Pac. 864.
Tobin v. West. Aid Soc., 72 la. 261; 33 N. W. 663.
American Soc. v. Helburn. 85 Ky. 1 ; 2 S. W. 495 ; 7 A. S. R.
571.
Rice v. N. Eng. Soc., 146 Mass. 249 ; 15 N. E. 624.
Rindge v. N. Eng. Soc., 146 Mass. 286; 15 N. E. 628.
37. Hanover Co. v. Dole, 20 Ind. App. 333 ; 50 N. E. 429.
Nedrow v. Farmer's Co., 43 la. 24.
Phoenix Co. v. Coomes, 14 Ky. L. R. 603 ; 20 S. W. 900.
88. Johnson v. American Co., 41 Minn. 396; 43 N. W. 59.
West End Co. v. American Co., 74 Fed. 114.
89. Norris v. Hartford Co., 57 S. Car. 358; 35 S. E. 672.
Anthony v. Ger.-Am. Co., 48 Mo. App. 65.
Eagle Co. v. Globe Co.. 44 Neb. 380; 62 N. W. 895.
Phoenix Co. v. Coffman, 10 Tex. Civ. App. 631; 32 S. W. 810.
318 THE LAW OF WAIVER.
not40 ; although the reverse doctrine is now adhered
to41. And several states have held in effect that
even if the agent had power to waive conditions in
a policy, no notice given to him or agreement made
by him as to a forfeiture can have any binding ef-
fect unless the waiver is indorsed on the policy42.
Sec. 318. But the weight of authority is in sup-
port of a contrary doctrine. The agent effecting the
insurance, delivering the policies and collecting the
premiums is the representative of the company. He
gets his pay in commissions from it. And as in all
other classes of agencies, his knowledge is that of
his principal, and his acts are binding upon it if per-
formed while in the discharge or furtherance of the
business intrusted to him. Usually he is the only
one in the community to whom those insured may
look in transactions relating to the insurance. In
fact, as far as the insured is concerned, he is the
company, with full power to deal in insurance. So,
therefore, where the insured gives all necessary in-
formation to the agent and makes known to him any
cause for which the policy might be forfeited, a
waiver by the agent is binding on the insurer
40. Enos v. Sun Co.. 67 Cal. 621 ; 8 Pac. 379.
41. Wheaton v. N. Brit. Co.. 76 Cal. 415; 18 Pac. 758;- 9 A. S. R
216.
42. Melga v. London Co.. 126 Fed. 781.
Liverpool Co. v. Richardson. 11 Okla. 585; 69 Pac. 938.
Moore v. Hanover Co., 141 N. Y. 219; 36 N. E. 191.
Manchester v. Guardian Co., 151 N. Y. 88 ; 45 N. E. 381 ; 56 A.
S. R. 600.
Pendar v. American Co., 12 Gush. 469.
Egan v. Westchester Co., 28 Oreg. 289 ; 42 Pac. 611.
INSUEANCS. 319
whether the agent indorsed such waiver on the pol-
icy or failed and neglected to do so43.
4. NOTICE OF LOSS :— Sec. 319. Insurance
policies contain provisions that after a loss notice
thereof must be given to the insurer within a speci-
fied time and in a designated manner. The giving
of such notice is a condition precedent to the right
of recovery, and a failure to perform the condition
in the specified time or manner defeats all right to
recover on the policy. The condition may also be
contained in the charter of the company with like
effect. But it is said that where such notice is re-
quired, failure to give it in the designated time or
manner is not a cause for forfeiture unless spe-
cifically so provided44.
A. SILENCE OF INSURER, OR FAILURE
TO OBJECT NOT A WAIVER:— Sec. 320. Fre-
quently the question arises as to what effect is to be
given to the conduct of an insurer in remaining
silent or raising no objection to the delinquency of
the insured in serving upon the insurer, within the
specified time, notice of a loss under the policy. It
is said that no duty to speak devolves upon the in-
surer when the insured is in default in the perform-
ance of this condition, either by his failure to give
the notice in time or to give it at all. "Whether the
company is silent or makes objection cannot alter
43. Morrison v. Ins. Co., 69 Tex. 353 ; 6 S. W. 605 ; 5 A. S. R. 63.
Hartford Co. v. Landfare, 63 Neb. 559; 88 N. W. 779.
Morgan v. Illinois Co.. 130 Mich. 427; 90 N. W. 40.
Maryland Co. v. Gusdorf, 43 Md. 506.
Liquid Mfg. Co. v. Phoenix Co., 126 la. 225 ; 101 N. W. 749.
Barnard v. National Co., 38 Mo. App. 106.
Mentz v. Lancaster Co., 79 Pa. St. 475.
PlK>enix Co. v. Hart, 149 111. 515; 39 111. App. 517; 36 N. E. 990.
Refstrake v. Cumberland Co., 44 N. J. L. 294.
Penn. Co. v. Faires, 13 Tex. Civ. App. Ill ; 35 S. W. 55.
44. Coventry Co. v. Evans, 102 Pa. St. 281.
320 THE LAW of WAIVER.
the right of the parties. If the notice is too late,
there is an end to the matter. The want of such
a notice cannot be supplied. Of what avail to the
assured to be told that the notice was insufficient?
that it was too late? How could the silence of the
insurance company be construed as an admission
that the notice was in time? It was not the duty of
the insurance company to make any objection to the
want of notice. It was made the duty of the assured
to give the notice, and neither silence on the part of
the company nor positive objections would alter its
character or sufficiency"45. Under a written provi-
sion of a policy that written notice of a loss should
be given within twenty days after its occurrence,
an oral notice to the company's agent within the
time, followed by a written notice to the company
after the time, was held not to be a compliance with
the condition, and a neglect of the company to ob-
ject did not waive its right to defend on account of
such non-compliance with the condition46. So, the
remark of the president of the company, made sev-
enteen months after a loss, that the company would
be disposed to do what was right, and that they
knew at the time of the fire that it was their loss
and were surprised that they were not notified, was
held not a waiver of the condition requiring notice
of loss within thirty days47. Nor does a waiver
occur where the insurer, after receiving a belated
notice of a loss, gives to the insured directions about
making out a statement of his loss, and has its
agent make an investigation as to the same48.
45. St. Louis Ins. Co. v. Kyle, 11 Mo. 278; 49 A. D. 74.
Knickerbocker Co. v. Gould, 80 111. 388.
46. Cornell v. Milwaukee Co., 18 Wls. 393.
47. Smith v. Haverhlll Mut. Co., 1 Allen 297 ; 79 A. D. 733.
48. Trask v. State F. & M. Co.. 29 Pa. St. 198; 72 A. D. 62*.
INSURANCE. 321
And it is said that a waiver of this condition does
not occur where the agent of the insurer, having
knowledge of a loss, informs the insured that the
company is attending to it and that it can be col-
lected, if the policy declares that no agent shall have
power to waive a breach of this condition49.
Sec. 321. This is in line with those authorities
holding that agents for the purpose of soliciting in-
surance, delivering policies and collecting premiums
are not agents for the purpose of receiving notice
or adjusting losses, such cases holding that notice
to the agent of a loss is not notice to the insurer50.
After the insured had failed and neglected to
forward notice of a loss within the required time,
he sent proofs of the loss to the general manager of
the company who retained the proofs but notified
the insured that the company denied all liability
under the policy, and this was held no waiver of the
failure of the insured to give the notice within the
required time51. So, a vote of the directors of
the company to indefinitely postpone consideration
of a loss is no waiver of a breach of the condition52.
B. CONTEAEY VIEW:— Sec. 322. But a
great contrariety of opinion exists as to the sub-
ject here being considered, and the authorities are
rather equally divided. As opposed to the views
hereinbefore expressed, it is said that the insertion
of the condition in the contract requiring notice of
49. Quinlan v. Providence Co., 133 N. T. 356; 31 N. B. 31; 28 A. 8.
R. 645.
Titus v. Glens Falls Co.. 81 N. T. 411.
60. Bowlin v. Hekla Ins. Co., 36 Minn. 433 ; 31 N. W. 859.
Shapiro v. Western Co.. 51 Minn. 239 ; 53 N. W. 463.
Shapiro v. St. Paul Co., 63 N. W. 614 (Minn.).
SI. Ermentrout v. Glrard Co., 63 Minn. 305; 65 N. W. 6S5;
A. 346.
12. Patrick v. Farmers Co.. 43 N. H. 621 ; 80 A. D. 197.
322 THE LAW OF WAIVER.
a loss in a certain time is for the advantage of the
insurer and may be insisted upon by it or waived
at its option; and that a waiver will be inferred
from any conduct of the insurer manifesting an in-
tention not to insist upon the forfeiture on account
of the absence of such notice. Thus, after a failure
to transmit notice as required by the policy, proofs
were sent to the insurer which were received by it
and others called for, such conduct being consistent
only with an intention to consider the contract as
still in force, the breach of condition as to notice
was held waived53. Also, it was waived where
the company furnished blanks upon which to
make the proofs54, accepted the proofs of loss55,
or required further proofs or information56,
or paid part of the amount due under the policy57,
made an examination and a schedule of the burned
property58, sent an agent to adjust the loss59.
And it is said that it makes no difference whether
the notice is required by statute, charter or by the
policy, the provision is still for the benefit of the in-
surer and may be waived by it60. Such waivers,
it is said, may be made by an adjusting agent, even
though the policy provide that no act or statement
of an agent shall be binding upon the insurer61.
53. Trippe u. Provident Soc., 140 N. Y. 23; 35 N. B. 316: 28 L. R.
A, 432.
54. Traveler's Co. v. Edwards, 122 U. S. 457; 30 L. Ed. 1178.
65. Nuthank v. Traveler's Co., 4 Biss. 357.
Jones v. Howard Ins. Co., 117 N. Y. 103; 22 N. E. 578.
56. Titus v. Glens Falls Co., 81 N. Y. 410.
Armstrong v. Agr. Co., 130 N. Y. 560 ; 29 N. E. 991.
57. Westlake v. St. Lawrence Co., 14 Barb. 206.
58. Badger v. Glens Palls Co., 49 Wis. 389 ; 5 N. W. 845.
Beatty v. Lycomlng, 66 Pa. St. 9.
59. Honie Ins. Co. v. Myer. 98 111. 271.
60. Lewis v. Monmouth Co., 52 Me. 492.
61. Stevens v. Citizens Co., 69 la. 658 ; 29 N. W. 769.
INSURANCE. 323
C. DISTINCTION BETWEEN NOTICE
OUT OF TIME AND NOTICE DEFECTIVE IN
FOEM:— Sec, 323. It is asserted that failing to
give the required notice, or giving it out of time,
stands on a different footing from the giving of
notice in a different form from that required by the
policy ; and while there is a difference of opinion as
to waiving the requirements as to the time of giv-
ing notice the authorities are quite distinct that if
the notice given is defective or erroneous, and the
company put its refusal to pay on other grounds,
such is a waiver of the condition as to notice62,
and that an objection on account of error in the
notice, not made till the trial, was held to be waived63.
The Patrick case above cited is comparatively
an early case involving this subject, but its
reasoning is sound. The opinion states: "A de-
fect in the time of notice stands on different ground
from a defect in its matter; while the last, upon
notice, may be remedied, it is otherwise with the
former, which is necessarily irremediable if the in-
surer chooses to insist upon it. It may be waived,
but it would be reasonable to require a different
kind of evidence from that which ought to be satis-
factory in cases of mere defect in form. The
silence of an insurance company, upon a defect in
form of the notice, might be very injurious to the
insured, but it is not at once seen how the assured
62. Patrick v. Farmers Co., 43 N. H. 621; 80 A. D. 197, citing:
Bumstead v. Dividend Co., 12 N. Y. 81.
Schenk v. Mercer Co., 24 N. J. L. 447.
Bilbrough v. Met. Co., 5 Duer, 587.
63. Id.
Kernochan v. N. Y. Bowery Co., 17 N. Y. 428.
Clark v. N. Ens:. Ins. Co., fi Gush. 342 ; 53 A. D. 44.
Peoria M. Co. v. Lewis, 18 111. 553.
Underbill v. Agawam Co., 6 Gush. 495.
Noyes v. Washington Co., 30 Vt. 659.
324 THE LAW OF WAIVER.
could be benefitted by notice that he had failed to
give information of his loss within the stipulated
time, or how he could be prejudiced by the omis-
sion."64.
5. PROOFS OF LOSS:
A. FAILURE TO FILE ANY PROOFS—
(1) IN GENERAL:— Sec. 324. Nearly all
policies of insurance, whether of property or of
life, require that proof of loss under the policy
shall be made within a designated time, with the pro-
viso that if same be not made in the required time
no liability shall attach to the insurer. This pro-
vision is permissible under the law and when ac-
cepted by the insured is binding upon him. But it
is a condition imposed for the sole benefit of the
insurer, and it has the option of insisting upon the
requirement or waiving it as it sees fit. And when
a loss has occurred, and there is such conduct on
the part of the insurer or its authorized agent as
induces the assured reasonably to believe that
proofs of loss were not to be demanded, and he, act-
ing under such belief, fails to furnish such proof or
to furnish it in the required time, his default or
delinquency is waived by the insurer65. What-
ever difference may exist among the courts as to a
waiver of the provision requiring the assured to
give notice of a loss, nearly all the authorities agree
that the condition as to furnishing proofs of loss
may be waived either expressly or by acts and con-
duct of the insurer or its agent, and that such
waiver may be inferred from any acts or conduct
64. Patrick v. Farmers Ins. Co., supra.
66. Hartford Co. v. Keating. 86 Md. 130 ; 38 Atl. 29 ; 63 A. S. R. 499.
INSUKANCE. 325
inconsistent with an intention to insist on a strict
compliance with the condition66.
(2) BY DENIAL OF LIABILITY :— Sec. 325.
It is a general rule, subject to but few exceptions,
that if the insurer, prior to the time limited for sub-
mitting proofs of loss by the insured, denies any
liability under the policy, such denial constitutes
a waiver of the requirement of the policy as to sub-
mitting such proof67. Thus, where an insurer,
with knowledge of a loss under a policy, refuses to
pay the loss under a contention that the policy was
not in force at the time of the loss, the necessity
of furnishing proofs of the loss is dispensed with68.
And where the agent of the insurer examined
at the place of the loss the facts connected with it
and told the assured that he could not recommend
payment of the loss for certain reasons, this was
held a denial of liability and a waiver of the proofs
of loss69; and a denial of liability on account of
the presence of benzine on the premises has the
same effect70. So, a denial of liability on the
66. Rokes v. Amazon Co., 51 Md. 512; 34 A. R. 323.
67. German-Am. Co. v. Norris, 100 Ky. 29; 37 S. W. 267; 66 A. S.
R. 324.
Wilson v. Com. Union Co., 51 S. Car. 540; 29 S. E. 245; 64
A. S. R. 700.
Commercial Co. v. State, 113 Ind. 331 ; 15 N. B. 518.
Savage v. Phoenix Co., 12 Mont. 458; 31 Pac. 66; 33 A. S. R.
591.
Phoenix Co. v. Bachelder, 32 Neb. 490 ; 62 N. W. 911 ; 29 A. S. R.
443.
Stepp v. Nat'l. Assoc., 37 S. Car. 444; 16 S. E. 134.
68. Rochester Loan Co. v. Liberty Ins. Co., 44 Neb. 537; 62 N. W.
877; 48 A. S. R. 745.
Faust v. American Co., 91 Wis. 158 ; 64 N. W. 883 ; 51 A; S. R.
876; 30 L. R. A. 783.
Roe v. Dwelling H. Co., 149 Pa. St. 94; 23 Atl. 718; 34 A. S. R.
595.
69. McBride v. Republic Co., 30 W<is. 562.
70. Faust v. American Co., 91 Wis. 158 ; 64 N. W. 883 ; 51 A. S. R.
876; 30 L. R. A. 783, citing among others;
Boyd v. Cedar Rapids Co., 70 la. 325 ; 30 N. W. 585.
O'Brien v. Ohio Co., 52 Mich. 131; 17 N. W. 726.
326 THE LAW OF WAIVER.
ground that no contract ever existed between the
parties is a waiver of proofs of loss 71.
(3) REFUSAL TO PAY ON OTHER
GROUNDS :— Sec. 326. A refusal of an insurer
to pay a loss under its policy on other grounds than
the failure of the insured to furnish the required
proofs of loss, is a waiver of such proofs72. And
the same effect results from a notification by the
insurer that it would not pay the loss73. So, a
refusal on the part of -an insurance company to pay
a claim for accident insurance on the ground that
death was caused by poison and the loss not covered
by the policy, is a waiver of the requirement that
proofs shall be furnished74. And an objection,
after a loss, that the insured had no title or interest
in the property insured, is a waiver of the proofs
of loss stipulated for75; or that the property lost
was not covered by the policy76, or that through
fraud the insured had lost his right to recover77.
71. Stokes v. Mackay, 147 N. T. 223 ; 41 N. E. 496.
Knickerbocker Co. v. Pendleton, 112 U. S. 696; 5 Sup. Ct. R»
314; 28 L. Ed. 866.
72. Shepherd's Adm. v. Peabody Co., 21 W. Va. 368.
Dietz v. Providence Co.. 33 W. Va. 526 ; 11 S. E. 50 ; 25 A. S. R.
908.
Martin v. Fishing Co.. 20 Pick. 389; 32 A. D. 220.
• Ocean Co. v. Francis, 2 Wend. 64 ; 19 A. D. 549.
Carson v. German Co., 62 la. 433 ; 17 N. W. 650.
Marston v. Mass. Co., 59 N. H. 92.
Tayloe v. Merchants Co., 9 How. 390.
Thwing v. Great West. Co., Ill Mass. 93.
West. Rock. Co. v. Sheets, 26 Gratt. 854.
Aetna Co. v. Shryer, 85 Ind. 362.
Merchants Co. v. Vining, 68 Ga. 197.
73. Phoenix Co. v. Spiers, 87 Ky. 285; 8 S. W. 453.
Sun Co. v. Mattingly, 77 Tex. 162; 13 S. W. 1016.
74. Met. Assoc. v. Froiland, 161 111. 30; 43 N. E. 766; 52 A. S. R.
359.
75. Grange Mills Co. v. Western Co., 118 111. 396 ; 9 N. E. 274.
German Co. v. Gueck, 130 111. 345 ; 23 N. E. 112 ; 6 L. R. A. 835.
76. Franklin Co. v. Coates, 14 Md. 285.
77. Peorla Co. v. Whitehall, 25 111. 466.
INSUKANCE. 327
(4) BY OTHER ACTS OE CONDUCT :-
Sec. 327. It has been stated that any conduct on
the part of the insurer or its agent that induces the
insured to reasonably believe that proofs of loss
were not to be demanded, and he, acting under such
belief, fails to furnish such proofs in the time re-
quired by the policy, renders them thereby waived78.
Thus, if the insurer make a demand for an
arbitration, such demand is a waiver of proofs of
loss79. Likewise, an agreement to settle on the
basis of the figures of a third party80, or partici-
pation in an arbitration81. So, if an insurer
investigates the cause of a fire injuring property
covered by its policy, and thereby obtains suffi-
cient information to enable it to determine the
amount of its liability expressly recognized by it,
and prepares proofs of loss from information thus
obtained, but the insured refuses to sign it because
it contains a stipulation for a settlement, the fur-
nishing of formal proof by the insured is thereby
waived82, as the conduct of the insurer was mis-
leading to the insured83.
78. Hartford Co. v. Keating, 86 Md. 130; 38 Atl. 29 ; 63 A. S. R. 499.
79. Home Co. v. Bean, 42 Neb. 537; 60 N. W. 907; 47 A. S. R. 711.
Pretzfelder v. Merchants Co., 123 N. Car. 164; 31 S. E. 470; 44
L. R. A. 424.
80. Wholley v. Western Co., 174 Mass. 263; 54 N. E. 548; 75 A. S.
R. 314.
Graves v. Merchants Co., 82 la. 637 ; 49 N. W. 65 ; 31 A. S. R. 507.
Davidson v. Guardian Co., 176 Pa. St. 525 ; 35 Atl. 220.
Perry v. Dwelling H. Co., 67 N. H. 291; 33 Atl. 731; 68 A. S. R.
668.
McCollum v. Liverpool Co., 67 Mo. App. 66.
Perry v. Faneuil Hall Co., 11 Fed. 482.
McPike v. Western Co., 61 Miss. 37.
81. Carroll v. Girard Co., 72 Cal. 297 ; 13 Pac. 863.
82. Larkin v. Glens Fall Co., 80 Minn. 527; 83 N. W. 409; 81 A.
S. R. 286.
83. 13 Am. & Eng. Enc. L., 345, et seq.
Home Co. v. Baltimore Co., 93 U. S. 527.
Helvetia Co. v. Allis Co., 11 Colo. App. 264; 53 Pac. 242.
Aetna Co. v. Simmons, 49 Neb. 811; 69 N. W. 125.
328 THE LAW OF WAIVER.
Sec. 328. But where notice of a loss is received
by the company, failure to demand further proof is
not waived84, as mere silence of the insurer can-
not amount to a waiver of proof85, it not being
its duty to notify the insured to comply with his
contract86.
B. DEFECTIVE PEOOFS WITHIN TIME EE-
QUIEED-
(1) NO OBJECTION BY INSUEEE :— Sec.
329. As has been heretofore noted, the condition
in a policy of insurance requiring proofs of loss to
be furnished by the insured as a condition prece-
dent to" his right to recover must be complied with
by him. And the compliance must be within the re-
quired time and in the designated manner. But a
distinction exists between the failure to furnish the
required proof within the time limited and the filing
of proofs which are in some way defective or in-
sufficient. In the former case, no duty is upon the
insurer to take any steps whatever for the failure
of timely proof is a release, as it were, ipso facto
from liability without any action by the company;
but in the latter, it is the duty of the insurer, if it
receive, within the time limited, defective or in-
sufficient proofs of loss, to return them to the in-
sured within a reasonable time, designating the par-
ticulars in which they are objectionable, and failure
of the insurer to do this amounts to a waiver by it
of the deficiency of the proofs and no defense can
later be predicated thereon.
84. O'Rellley v. Guardian Co., 60 N. Y. 169; 19 A. R. 161.
Desilver v. State Mut. Co., 38 Pa. St. 130.
85. Mueller v. South Side Co., 87 Pa. St. 399.
86. Ayers v. Hartford Co., 17 la. 176.
Andraveno v. Mut. Co., 38 Fed. 806.
INSURANCE. 329
Sec. 330. Or, as it has been differently stated,
if the insured in good faith and within the stipula-
ted time, does what he plainly intends as a compli-
ance with the requirements of the policy, good faith
equally requires that the company notify him
promptly of its objections so as to give him the op-
portunity to obviate them ; and mere silence may so
mislead him to his disadvantage, to suppose the
company satisfied, as to be of itself sufficient evi-
dence of a waiver by estoppel87. And even if the
company return the proofs after receiving them,
its duty does not end there; it must state its ob-
jections or the defects will be held waived88. So, a
return of the proofs with a statement that they do
not correspond with printed instructions, is not a
performance of the duty resting upon the insurer,
and defects in the proofs cannot later be set up by
it as a defense to an action upon the policy89. And
retaining the books of the insured, furnished at the
request of the insurer, till after expiration of the
time limited, is a waiver of the defects in the
proofs90.
Sec. 331. An apparent departure from the gen-
eral rule is noted in an Iowa case91, where it is said
that mere silence of the insurer will not amount to
a waiver of defects in the proofs of loss. But in
87. Moyer v. Sun Ins. Co., 176 Pa. St 579; 35 Atl. 221; 63 A. S. R.
690.
Gould v. Dwelling H. Co., 134 Pa. St. B88 ; 19 Atl. 793 ; 19 A. S.
R. 717.
88. Vangindertaelen v. Phoenix Co., 82 Wis. 112; 51 N. W. 1122; 33
A. S. R. 29.
Welsh v. London Corp., 151 Pa. St 607; 25 Atl. 142; 31 A. S.
R. 786.
89. Universal Co. v. Block, 109 Pa. St. 535.
90. Bonnert v. Perm. Co., 129 Pa. St. 558; 18 Atl. 652; 15 A. S. R.
739.
91. Ayres v. Hartford Co., 17 la. 176 ; 85 A. D. 553.
Affirmed on second appeal, 21 la. 193.
330 THE LAW or WAIVES.
the next clause of the opinion the court approves
the general rule by saying that an objection to the
proofs upon one specific ground and silence as to
another in which was the real defect, operate as a
waiver of the latter. And it will be found that al-
most an unbroken line of authorities support the
doctrine that defects in proofs filed within the re-
quired time are waived unless they be promptly
pointed out to the insured so that he may have an
opportunity to correct them92.
(2) OBJECTION ON OTHEE GBOUNDS:-
Sec. 332. The rule applicable to cases where the in-
surer fails to object to the proofs or point out their
defects obtains likewise where objections are made
but put upon grounds other than the particular de-
fect in the proofs. Or, as it has been said, where
proofs of loss are served and retained by the in-
surance company without objection to the defects,
and the company refuses to pay the loss, placing
92. Cayon v. Dwelling H. Co., 68 Wis. 510; 32 N. W. 540.
Farnum v. Phoenix Co., 83 Cal. 246; 2 Pac. 869; 17 A. S. K. 233.
Jones v. Mech. Co.. 36 N. J. Eq. 29 ; 13 A. R. 405.
Insurance Co. v. McDowell, 50 111. 120 ; 99 A. D. 497.
Weed v. Hamburg Co., 133 N. Y. 394; 31 N. E. 231.
Davis Shoe Co. v. Kittanning Co., 138 Pa. St. 73; 20 Atl. 838; 21
A. S. R. 904.
German Co. v. Gray, 43 Kans. 497; 23 Pac. 637; 19 A. S. R. 150;
8 L. R. A. 70.
Blake v. Exchange Co., 12 Gray 265 (Mass.).
Travis v. Continental Co., 32 Mo. App. 198.
Fire Ins. Co. v. Felrath, 77 Ala. 194.
Breckenridge v. American Co., 87 Mo. 62.
Works v. Farmers Co., 57 Me. 281.
Myers v. Council Bluffs Co., 72 la. 176 ; 33 N. W. 453.
Swan v. Liverpool Co., 52 Miss. 704.
Butterworth v. Western Co., 132 Mass. 492.
Little v. Phoenix Co., 123 Mass. 380; 25 A. R. 96.
Sun Co. v. Dudley, 65 Ark. 240; 45 S. W. 539.
Alston v. Phoenix Co., 100 Ga. 287; 27 S. E. 981. • .
Angier v. Western Co., 10 S. Dak. 82 ; 71 N. W. 761 ; 66 A. S.
R. 685.
1st Nat'l. Bank v. American Co., 58 Minn. 492; 60 N. W. 345.
Western Co. v. Richardson, 40 Neb. 1 ; 58 N. W. 597.
INSURANCE. 331
its refusal on some ground other than defects in the
proofs, any further performance in relation to the
proofs is waived and the company is estopped when
sued on its policy for the loss to make any formal
objections to the proofs93. This doctrine is uni-
versally adhered to and is founded on the proposi-
tion that both parties must conduct themselves fair-
ly and in good faith, and, therefore, that fair deal-
ing entitles the insured to be apprised of the de-
fects or insufficiency in the proofs in order that he
may remedy the matter before it is too late94. The
principle is well stated in the statute of South Da-
kota: "All defects in preliminary proof which the
insured might remedy, and which the insurer omits
to specify to him without unnecessary delay, as
grounds of objection, are waived"95.
C. NOT FILED IN TIME:— Sec. 333. The
provision in an insurance policy that proofs of loss
shall be submitted to the insurer within a specified
time is binding upon the insured, and his failure to
comply therewith is a bar to his recovery on the
93. Continental Co. v. Ruckman, 127 111. 364; 20 N. E. 77; 11 A. S.
R. 121.
Phoenix Co. v. Tucker, 92 111. 64; 34 A. R. 106.
Scammon v. Conn. Ins. Co., 20 111. App. 500.
94. Central Co. v. Gates, 86 Ala. 558; 6 So. S3; 11 A. S. R. 67.
Fireman's Co. v. Floss, 67 Md. 403 ; 10 Atl. 139 ; 1 A. S. R. 398.
May, Insurance, 469B (4th Ed.).
Tayloe v. Mer. Co.. 9 How. 390.
Hartford Co. v. Harmer, 2 Oh. St. 452.
Ayres v. Hartford Co., 17 la. 176; (21 la. 193); 85 A. D. 553.
2 Wood, Insurance, Sec. 452.
Martin v. Fishing Co., 20 Pick. 389; 2 A. D. 220.
Ocean Co. v. Francis, 2 Wend. 64 ; 19 A. D. 549.
McBryde v. S. Car. Co., 55 S. Car. 589 ; 33 S. E. 729 ; 74 A. S. R.
769.
Nurney v. Fireman's Co., 63 Mich. 633 ; 30 N. W. 350 ; 6 A. S. R.
338.
Phoenix Co. v. Badger, 53 Wis. 284 ; 10 N. W. 504.
Western Co. v. Putnam, 20 Neb. 331 ; 30 N. W. 246.
95. See: Enos v. St. Paul Co.. 4 S. Dak. 639; 57 N. W. 919; 46 A. S.
R. 796.
332 THE LAW OF WAIVER.
policy. And it is his duty to make such proofs with-
out any request or demand therefor from the insurer,
for the policy which he accepts is notice to him of
its requirements. And, unlike receiving and re-
taining defective proofs without specifying objec-
tions thereto, the mere receipt after the time limited
of proofs of loss and their retention in silence is not
and should not be a waiver by the insurer of the
failure to file the proofs in time96. But caution
should be used in applying this doctrine in order to
bring about an exercise of good faith and fair deal-
ing on the part of the insurer. And it must be re-
membered that a distinction exists between those
cases where the insurer receives belated reports
and says or does nothing, and those other cases
where the insurer by its conduct induces delay or
renders the production of proofs useless or unavail-
ing or induces in the mind of the insured an honest
belief that no proofs will be required. In the former
cases the insured must suffer for his own laches;
but in the latter, his default is deemed waived on ac-
count of the conduct of the insurer in lulling him
into a false feeling of security97.
Sec. 334. Thus, where the company received
the proofs after the time limited, referred them to
its adjuster and retained them without objection or
complaint for five months, the court said that if the
company acted upon the proofs as having been re-
96. Andaveno v. Mutual, 38 Fed. 806.
Daniels v. Equitable, 50 Conn. 551.
Cent. City v. Gates, 86 Ala. 558; 6 So. 83 ; 11 A. S. R. 67.
Ayres v. Hartford Co., 17 la. 176; 21 la. 193; 85 A. D. 555.
Bell v. LycomJng Co., 19 Hun 238.
»7. Kenton Co. v. Wigginton, 89 Ky. 330; 12 S. W. 668; 7 L. R. A.
80.
Martinson v. N. B. Co., 64 Mich. 372; 31 N. W. 291.
German Co. v. Grunert, 112 111. 69.
Gane 'v. St. Paul Co., 43 Wis. 109.
INSURANCE. 333
ceived in time, and made no objections whatever
until the trial, it would be presumed to have waived
the objection that the proofs were not filed in time98.
And by its action in sending to the insured a blank
form for proof of loss after the expiration of the
time designated for furnishing same, and receiving
the proof without objection when made, it waived a
default in making such proof within the required
time". After a belated proof had been received by
the insurer, it called upon the insured for further in-
formation in the procurement of which the insured
was put to further expense and trouble. The in-
surer, in an action on the policy, set up the defense
that the proofs were not served in time. The court
said that it is well settled that such defenses are
waived when the company, with full knowledge of
the facts, requires the insured, by virtue of the con-
tract, to do some act or incur some expense or
trouble inconsistent with the claim that the con-
tract had become inoperative100. So, requiring fur-
ther proofs is a waiver of prior defaults1, or de-
manding the certificate of a notary as to the loss2.
And a failure to furnish proof of death within the
time limited by a life insurance policy is waived when
the company makes a proposal to settle, or abso-
98. Commercial Co. v. Hocking, 115 Pa. St. 407 ; 8 Atl. 589 ; 2 A. 8.
R. 562.
Lyooming Co. v. Schreffer. 42 Pa. St. 188 ; 82 A. D. 501.
99. Traveler's Co. v. Edwards, 122 U. S. 457 ; 30 L. Ed, 1178.
Burlington Co. v. Lowery, 61 Ark. 108 ; 32 S. W. 383 ; 54 A. S.
R. 196.
Insurance Co. v. Eggleston. 96 U. S. 572.
100. Trippe v. Provident Soc., 140 N. T. 23 ; 35 N. E. 316; 22 L. R. A.
432.
1. Armstrong v. Agr. Co., 130 N. T. 560.
Bliss: Life Insurance, 268.
Coke: Life Insurance, 118.
2. Merchants Co. v. Gibbs. 56 N. J. L. 679; 29 Atl. 485; 44 A. S. R.
413.
Martin v. State Co., 44 N. J. L. 485; 43 A. R. 397.
334 THE LAW OF WAIVER.
lutely refuses to pay, or denies all liability, or asks
for additional proofs without making objection that
proof was not made in time3.
D. WHO MAY WAIVE PROOFS:— Sec.
335. As will have been noted in previous pages,
perhaps no greater difficulty will be found in the
law of insurance than in an attempt to harmonize
the adjudications on the question as to who, or, as
is more frequently to determine, what agents may
waive conditions in policies of insurance. But in
the waiver of proofs of loss, many courts which
deny to an agent the power to waive conditions
breached prior to a loss when the policy prohibits
such waiver, uphold such power in him for the
waiver of proofs of loss, saying that the condition of
the policy prohibiting agents from exercising such
authority applies only to those provisions which
relate to the formation and continuance of the con-
tract and are essential to its binding force while it
is running and does not apply to those conditions
which are to be performed after a loss has occurred,
such as furnishing preliminary proof4. Other
courts state clearly and decisively the proposition
that one who is appointed by an insurer to make
contracts of insurance, issue policies and collect
premiums is the general agent of the insurer and as
such is authorized to waive proofs of loss either
3. McElroy v. Hancock, 88 Md. 137; 41 Atl. 112; 71 A. S. R. 400.
Hartford Co. v. Keating, 86 Md. 130; 63 A. S. R. 499.
4. Wheaton v. N. B. Co., 76 Cal. 417; 18 Pac. 758 ; 9 A. S. R. 216.
N. O. Assoc. v. Matthews, 65 Miss. 301 ; 4 So. 62.
O'Brien v. Ohio Co., 52 Mich. 131; 17 N. W. 726.
Franklin v. Chi. Ice Co., 36 Md. 102; 11 A. R. 469.
Blake v. Ex. Co., 12 Gray 265.
Carson v. Jersey Co., 43 N. J. L. 300; 39 A. R. 584.
Indiana Co. v. Capehart, 108 Ind. 270; 8 N. B. 285.
Dibbrell v. Georgia Co., 110 N. Car. 193; 14 S. E. 783; 28 A. S.
R. 678.
INSUEAXCE. 33.5
expressly or by Ms conduct5; others saying that a
waiver may be made by an authorized agent6, the
determination of whether an agent is authorized or
not being the difficult point.
Sec. 336. It occurs to the writer that no ques-
tion should be raised as to the power of an adjuster
to waive proofs of loss and that any act or expres-
sion of his calculated to induce, or having the ef-
fect of inducing a belief in the mind of the assured
that such proof would not be insisted upon or, if de-
fective, that no objection would be made should be
held a waiver ; and it is thought that the cases quite
generally declare this doctrine7. It must be shown,
of course, that the adjuster had authority to repre-
sent the company in adjusting the loss8, or in set-
tling it9. But some cases go farther than this and
say that an agent having authority to solicit insur-
ance, countersign policies, collect premiums and de-
liver the policies is presumed to have power to
waive proofs of loss10; and, again, this doctrine is
denied, and a diametrically opposite position
5. Phoenix Co. v. Bowdre, 67 Miss. 620; 7 So. 596; 19 A. S. R. 326.
Rivara v. Queen's Ins. Co., 62 Miss. 728.
6. Perry v. Mech. Co., 11 Fed. 478.
7. Aetna Co. v. Shryer, 85 Ind. 362.
Indiana Co. v. Copehart, 108 Ind. 270 ; 8 N. E. 285.
Western Co. v. McCarty, 18 Ind. App. 449.
David v. Oakland Co., 11 Wash. 181 ; 39 Pac. 443.
Dwelling H. Co. v. Osborn, 1 Kans. App. 197 ; 40 Pac. 1099.
Dick v. Equitable Co., 92 Wis. 46; 65 N. W. 742.
Wrig-ht v. Fire Assoc., 12 Mont. 474; 31 Pac. 87; 19 L. R. A. 211.
Dibbrell v. Georgia Co., 110 N. Car. 193 ; 28 A. S. R. 678.
Hahan v. Guardian Co., 23 Oreg. 576; 32 Pac. 683; 37 A. S. R.
709.
8. Germania Co., v. Davis, 40 Neb. 700 ; 59 N. W. 698.
Kirkman v. Farmers Co., 90 la. 457 ; 57 N. W. 952 ; 48 A. S. R.
454.
9. Kahn v. Trader's Co., 4 Wyo. 419 ; 34 Pac. 1059 ; 62 A. S. R. 47.
10. Mickell v. Phoenix Co., 144 Mo. 420 ; 46 S. W. 435.
Snyder v. Dwelling H. Co., 59 N. J. L. 544 ; 37 Atl. 1022 ; 59 A. S.
R. 625.
Hartford Co. v. Keating, 86 Md. 130; 38 Atl. 29; 63 A. S. R. 499.
336 THE LAW OF WAIVER.
taken ". We think that the correct basis for deter-
mination of the matter is this: If the agent be
clothed with authority, or apparent authority to ad-
just or settle losses, or if he has been accustomed,
with the acquiescence of the company, to receive
proofs of loss and determine in any manner their
sufficiency, then he should be held to have author-
ity to waive proofs of loss or defects therein12.
E. WHETHER PEOOFS MAY BE WAIVED
ORALLY—
(1) IN THE NEGATIVE:— Sec. 337. One
provision found in nearly all policies is that no
agent shall have authority to change or waive any
of its conditions or provisions except by writing in-
dorsed on the policy. This applies equally to pro-
visions requiring proofs of loss as to other condi-
tions. And it has been said that in prescribing such
a term or condition, the insurer has prescribed only
a reasonable rule to guard against the uncertainties
of parol evidence13, and the possibility of fraud and
collusion14; and that the provision becomes binding
as a part of the contract, and acceptance of the pol-
icy is notice to the insured of this condition in the
performance of which he defaults at his peril15.
(2) IN THE AFFIRMATIVE:— Sec. 338.
But the current of authority undoubtedly flows in
11. Kirkman v. Farmers Co., supra.
Lohnes v. Ins. Co., 121 Mass. 439.
Harrison v. Hartford Co.. 59 Fed. 732.
Smith v. Niagara Co.. 60 Vt. 682 : 15 Atl. 353 ; 6 A. S. R. 144.
12. Graves v. Merchants Co., 82 la. 637; 49 N. W. 65 ; 31 A. S. R.
507.
Harnden v. Milwaukee Co., 164 Mass. 382 ; 41 N. E. 658.
13. Kyte v. Commercial Co.. 144 Mass. 43 ; 10 N. E. 318.
14. Walsh v. Hartford Co., 73 N. T. 5.
15. Wheaton v. N. B. Co.. 76 Cal. 415 ; 18 Pac. 758 ; 9 A. S. R. 216.
See: Insurance Co. v. Wilkinson, 13 Wall. 222.
INSURANCE. 337
the opposite direction. The better rule is that al-
though the policy specially provides that the pre-
liminary proof of loss shall be made in a particular
mode and within a limited time, yet the company
may, even through its agent, waive the benefit of the
provision, and a waiver may be implied from the
manner in which the company or its agent has dealt
with the policy-holder subsequent to the loss16. And
there is no good reason why the condition requiring
proofs of loss may not be waived by parol in the
face of the provision that it shall not be effective un-
less written on the policy. Insurers are subject to
the same laws controlling other contracting parties,
and any written contract, not required by the stat-
ute of frauds to be in writing, may be modified by a
subsequent oral agreement between the parties there-
to, or its conditions may be abrogated by a course of
conduct inconsistent with its terms. And here,
again, it is said that this stipulation against waiver
of conditions except by writing on the policy applies
only to those conditions which relate to the forma-
tion and continuance of the contract and are es-
sential to its binding force, while it is running, and
does not apply to conditions which are to be per-
formed after a loss has occurred; and it is, there-
fore, held that preliminary proofs may be waived by
parol contrary to the terms of the policy17.
6. AEBITEATION:— Sec. 339. The usual
provision as to arbitration in policies of insurance
is that in case of difference between the insurer and
16. Wood: Fire Insurance, 447.
17. Phoenix Co. t>. Bowdre, 67 Miss. 620; 7 So. 696; 19 A. S. R. 326.
Insurance Co. v. Eggleston, 96 U. S. 672.
Burlington Co. v. Kennerly, 60 Ark. 532 ; 31 S. W. 155.
Carson v. Jersey City Co., 43 N. J. L. 800 ; 39 A. R. 584.
Traveler's Co. v. Hamey, 82 Va. 949.
German Co. v. Gray, 43 Kans. 497; 23 Pac. 637; 19 A. S. R. 150.
338 THE LAW OF WAIVER.
the insured as to the amount of a loss, the matter
shall be referred to a board of appraisers who shall
determine the amount, and that such determination
shall be a condition precedent to a right of action
by the assured, some policies attempting to make
the amount so determined conclusive. This condi-
tion is for the benefit of the insurer and may be
waived or insisted upon by it at its option. A
waiver of the provision may be express or it may
be inferred from conduct inconsistent with an inten-
tion to insist upon it.
Sec. 340. Thus, where the insurer refuses to
pay any amount at all, the clause is waived18. And
where the company took possession of the damaged
property and proceeded to repair it, it could not later
defend an action on the ground of no appraisal19.
In one case, after a fire and within the time pre-
scribed by the policy the plaintiffs furnished the de-
fendant the required proofs of loss, and thereupon,
without questioning or making objection to the
amount of the loss claimed or to the proofs thereof,
the company, for other reasons, not only denied its
liability but denied the existence of the policy, claim-
ing that it had been cancelled two months before the
loss. This was held to be sufficient evidence that the
insurer acquiesced in the amount of the loss claimed,
and thereby waived its right to have it determined
by arbitration20. And even where such arbitration
is a condition precedent to the right to maintain an
action on the policy, the assured, after his prof-
is. Western Co. v. Putnam, 20 Neb. 331; 30 N. W. 246.
19. Cobb v. N. E. Co., 6 Gray, 192 (Mass.).
20. Farnum v. Phoenix Co., 83 Cal. 246; 23 Pac. 869; 17 A. S. R.
233.
Lasher v. N. W. Co., 18 Hun 98; 35 How. Pr. 318.
Mentz v. Armenia Co., 79 Pa. St. 478 ; 21 A. R. 8C.
Phoenix Co. v. Badger, 53 Wis. 284; 10 N. W. 504.
INSURANCE. 339
fered proofs of loss have been rejected by the in-
surer without demand for an appraisal or objection
to the amount of the loss as shown by such proofs,
may sue for the loss without first showing an ap-
praisal21. And a waiver likewise occurs where the
assured, after a loss, demands an arbitration which
is refused by the insurer22. So it is said that arbi-
tration becomes imperative only after a written re-
quest for one has been made. The request is op-
tional with either party, and if neither of them takes
advantage of the right to arbitrate, it must be
deemed to have been waived by both23. And an ab-
solute denial of liability is a waiver of the arbitra-
tion clause24, although this has been differently de-
cided25.
7. LIMITATION OF TIME TO SUE:
A. WHAT CONSTITUTES A WAIVER:—
Sec. 341. Another clause common to policies is that
providing that all right of action shall be barred un-
less exercised within a certain time after a loss or
after proofs of loss have been furnished. This
condition is valid and binds the insured if insisted
upon by the insurer or unless something is done by
21. Randall v. American Co., 10 Mont. 340; 25 Pac. 953; 24 A. S. R.
50.
22. Continental Oo. v. Wilson, 45 Kans. 250 ; 25 Pac. 629 ; 23 A. S.
R. 720.
Vangindertaelen v. Phoenix Co., 82 Wis. 112 ; 51 N. W. 1122 ; 33
A. S. R. 29.
23. Nurney v. Fireman's Co., 63 Mich. 633 ; 30 N. W. 350 ; 6 A. S. R.
338.
Gere v. Council Bluffs Co., 67 la. 272 ; 23 N. W. 137 ; 25 N. W.
159.
Wright v. Susquehanna Co.. 110 Pa. St. 29; 20 Atl. 716.
24. Wainer v. Nulford Co., 153 Mass. 235; 26 N. E. 877; 11 L. R. A.
598.
Hutchinson v. Liverpool Co., 153 Mass. 143 ; 26 N. E. 439 ; 10
L. R. A. 558.
German Co. v. Etherton, 25 Neb. 505 ; 41 N. W. 406.
25. Pioneer Co. v. Phoenix Co., 106 N. Car. 28; 10 S. E. 1059.
340 THE LAW OF WAIVER.
it manifesting an intention or inclination not to en-
force the provision. The condition is a stringent
one and oftentimes oppressive npon the insured,
and the inclination of the courts is to hold slight
evidence sufficient to show that the insurer has
elected to forego its rights thereunder. And if the
course of conduct pursued by the insurer is such as
to induce the insured to believe that the loss will be
paid or adjusted without suit, and for this reason
suit is not brought within the time prescribed in the
policy, then suit may be brought after such time,
for the conduct of the insurer constitutes a waiver
of the limitation26. So, part payment of the loss
produces the same result27, as does fraud of the
insurer in holding out reasonable hopes of a settle-
ment28, or misconduct of its agent misleading to the
assured29. And if the acts of the insurer are such
as to induce a reasonably prudent man to believe it
unnecessary to bring suit, the limitation is waived30,
as it is if the insurer promises to pay after the suit
is brought31, or flatly refuses to pay at all32, or rec-
26. St. Paul Co. v. McGregor, 63 Tex. 404.
Smith v. Glens Falls Co., 62 N. Y. 88.
Farmers Co. v. Chestnut, 50 111. 115; 99 A. D. 492.
Peorla Co. v. Hall, 12 Mich. 202.
Grant v. Lexington Co., 5 Ind. 23 ; 61 A. D. 74.
Killlps v. Putnam Co., 28 Wis. 472 ; 9 A. R. 506.
McFarland v. Peabody Co., 6 W. Va. 425.
27. Kentucky Mut. Co. v. Turner (Ky.) ; 13 S. W. 104.
28. Mickey v. Burlington Co., 35 la. 174 ; 14 A. R. 494.
Coorheis v. People's Soc., 91 Mich. 469 ; 51 N. W. 110».
Little v. Phoenix Co., 123 Mass. 389; 25 A. R. 96.
Martin v. Slate Co., 44 N. J. 485 ; 43 A. R. 397.
29. Jennings v. Met. Co., 148 Mass. 61; 18 N. E. 601.
80. Blsh v. Hawkeye Co., 69 la. 184; 28 N. W. 552.
Black v. Winnesheik Co., 31 Wis. 74.
Derrick v. Lamar Co., 74 111. 404.
31. Home Co. v. Meyer, 93 111. 272.
Ames v. N. Y. Co., 14 N. Y. 253.
82. Georgia Home Co. v. Jacobs, 56 Tex. 366.
State Co. v. Maackrns, 38 N. J. L. 564.
Commercial Co. v. Allen, 80 Ala. 571.
Aetna Co. v. Maguire, 51 111. 342.
INSURANCE. 341
ognizes any liability33. The limitation is waived
where the insurer, within the time limited, made an
assignment for the benefit of creditors34, or sent a
letter to the insured requesting him to let the mat-
ter rest till the adjuster could see the attorney of
the insured35; or refused to permit a beneficiary in
an accident policy to inspect its by-laws and mis-
stated the time within which action should be
brought36, or retained the books and papers of the
assured till after the expiration of the prescribed
time37. And this condition may be waived orally
as well as in writing, notwithstanding a provision
to the contrary in the policy38.
B. ACTS NOT A WAIVER:— Sec. 342. But
the clause is not waived by the failure and neglect of
the insurer to adjust the loss39, nor by mere nego-
tiations40, nor by a promise to pay, which promise is
withdrawn four months prior to the expiration of
the time limited41, nor is silence such a waiver42, nor
indefinite conversations about an adjustment43, nor
where the insurer declines to enter into any negotia-
tions44.
33. Horst V. Insurance Co., 73 Tex. 67 ; 11 S. W. 148.
34. In re St. Paul Co., 58 Minn. 163 ; 59 N. W. 996 ; 49 A. S. R. 497.
35. Turner v. Fidelity Co., 112 Mich. 425; 70 N. W. 898; 67 A. S. R.
428 ; 38 L. R. A. 529.
36. Met. Assoc. v. Froiland. 161 111. 30; 43 N. E. 766; 52 A. S. R.
359.
37. Bonnert v. Penn. Co.. 129 Pa. St. 558 ; 18 AtL 552 ; 15 A. S. R.
739.
38. Dwelling H. Co. v. Brodie, 52 Ark. 11; 11 S. W. 1016; 4 L. R. A.
458.
Gladding v. California Co., 66 Cal. 6 ; 4 Pac. 764.
Blake v. Exchange Co., 12 Gray 271.
Franklin Co. v. Chi. Ice Co., 36 Md. 102; 11 A. R. 469.
Wood, Fire Insurance, (2d Ed.) Art 525.
39. Button v. Vermont Co., 17 Vt. 369.
40. Allemania Co. v. Little, 20 Bradw. 431.
41. Garretson v. Hawkeye Co., 65 la. 468; 21 N. W. 781.
42. Schroeder v. Keystone Co., 2 Phila. 286.
43. Ripley v. Aetna Ins. Co., 30 N. T. 136; 86 A, D. 362.
44. Id.
342 THE LAW OF WAIVER.
CHAPTER 13.
TOETS.
Section.
1. In General 343
2. Fraud and Fraudulent Representations 345
3. Conversion 348
4. Effect of Waiver 351
1. IN GENERAL:— Sec. 343. If a party
have a right under the law to sue either in tort or
on an implied contract under the same line of facts,
he will be held to have waived one by proceeding on
the other. But no waiver can take place unless the
party have full knowledge of all the facts and of all
his rights thereunder45. A party may waive an
action of tort and sue in assumpsit for the money
which he paid on the contract or which the defend-
ant has received under it ; but where part of the con-
sideration was land and claims against other per-
sons, a recovery for them cannot be had under a
count for money had and received unless so far as
the defendant may have converted them into money.
If more than mere rescission is sought, the plain-
tiff must sue for damages46. A party cannot waive
a tort and bring an action in assumpsit against the
tort-feasor except where the property has been
converted into money or its equivalent47.
Sec. 344. If one has taken possession of prop-
erty and sold or disposed of it without lawful au-
thority, the owner may either disaffirm his act and
45. Sllvey v. Tift, 123 Ga. 804; 61 S. E. 748; 1 L. R. A. (N. S.)
386.
46. Pearsoll v. Chapin. 44 Pa. St. 9.
47. Emerson v. McNamara, 41 Me. 665.
Androsooggln Co. v. Metcalf, 65 Me. 40.
Quimby v. Lowell, 89 Me. 547; 36 Atl. 902.
TOETS. 343
treat him as a wrong-doer and sue him for a tres-
pass or for a conversion of the property, or he
may affirm his acts and treat him as his agent and
claim the benefit of the transaction; and if he has
once affirmed his acts and treated him as his agent,
he cannot afterward treat him as a wrong-doer, nor
can he affirm his acts in part and void them as to the
rest48. So, if property has been disposed of by him
who tortiously obtains possession of it, the tort may
be waived and assumpsit maintained49, even though
there is no positive proof as to the amount received
for the property50. And if a passenger is injured
through the negligence of a carrier, while traveling
under a contract, he may waive the contract and
sue in tort, or vice-versa?'1.
2. FRAUD AND FRAUDULENT REPRE-
SENTATIONS:— Sec. 345. Courts look with dis-
favor upon alleged waivers of fraud or fraudulent
representations inducing contracts. While it is true
that such fraud may be ignored by the party enti-
tled to complain of it, yet in order to show a com-
plete waiver, it must clearly appear that at the time
of such alleged waiver there was full knowledge
of all the facts, and the acts or language of the party
against whom the waiver is alleged must be abso-
lutely inconsistent with any intention to take ad-
vantage of his rights after such knowledge52. The
confirmation of the act tainted with fraud must be
deliberate and unequivocal.
48. Addison on Torts, 33.
49. Miller v. King, 67 Ala. 576.
Doon v. Ravey, 49 Vt. 293.
50. Smith, et al. v. Jernigan, 83 Ala. 256; 3 So. 515.
51. L. S. & M. S. Ry. Co. v. Teeters. 166 Ind. 335; 77 N. E. 599;
6 L. R. A. (N. S.) 425.
52. Cumberland Coal Co. v. Sherman, 20 Md. 117.
344 THE LAW OP WAIVER.
The decisions are somewhat inharmonious as to
what facts and circumstances will be sufficient to
amount to a waiver of fraud in the inducement of a
contract. Where a defrauded vendee of property
retains it after discovery of fraudulent representa-
tions regarding it, he is said neither to have waived
the fraud nor a right to sue for damages53. And
merely offering the property for sale after ascer-
taining the true facts is not a waiver54 ; nor recover-
ing an uncollectable judgment for the purchase-
price55; although selling it amounts to a waiver of
the right to rescind and to sue for damages58. And
one knowing of fraud who subsequently confirms
the original contract by making new agreements
regarding it or doing any other act manifesting an
intention to treat it as a valid and subsisting agree-
ment, waives the fraud and forfeits any equitable
relief he might have had thereon57. But it is not a
waiver to accept part payment of a purchase-price
note, the vendor stating at the time that he did not
waive his claim for damages on account of the de-
53. Murray v. Jennings, 42 Conn. 9.
Sells v. Miss. River L. Co., 88 Wis. 581; 60 N. W. 1065.
Matlock. v. Reppy, 47 Ark. 148; 14 S. W. 546.
54. Pierce v. Wilson, 34 Ala. 596.
Cottrill v. Krum, 100 Mo. 397; 13 S. W. 753.
55. Standard S. M. Co. v. Owings, 140 N. Car. 503; 53 S. E. 345; 8
L. R. A. (N. S.) 582.
56. Baker v. Maxwell, 99 Ala. 558; 14 So. 468.
57. Thompson v. L,ibby, 36 Minn. 287; 31 N. W. 52.
John v. Hendrickson, 81 Ind. 350.
Werner v. Pen Argyl Co., 133 Pa. St. 457 ; 19 Atl. 417.
Rogers v. Hlggins, 57 111. 244.
Gilchrlst v. Manning, 54 Mich. 210; 19 N. W. 959.
Masson v. Bovet, 1 Denlo 69.
Grymes v. Sanders, 93 U. S. 55.
Vernol v. Vernol, 63 N. T. 45.
Bower v. Metz, 54 la. 394; 6 N. W. 551.
Seavy v. Potter, 121 Mass. 297.
Hunt v. Hardwick, 68 Ga. 100.
Brown v. Waters, 7 Neb. 424.
Barman v. Woods, 38 Ark. 351.
TORTS. 345
ceit58; and false representations that a mortgage
is a prior lien are not waived by retaining the mort-
gage59.
Sec. 346. The principles here set out have been
well commented on by a Federal court as follows :
"The contract, being against conscience because of
the fraud, is not obligatory upon him if he shall so
elect; but if, when fully informed of the fraud, he
voluntarily confirms, ratifies and performs and ex-
acts performance of the contract, he condones the
fraud, and such ratification, like the unauthorized
act of an agent, relates to the time of the contract,
confirming it from its date and purging it of fraud.
With respect to an executory contract, one may not,
with knowledge of the fraud, continue to carry it
out, exacting performance from the other party to
it, receive its benefits, and still pursue an action for
deceit; and this because continued execution with
knowledge of the fraud signifies the ratification of a
contract voidable for fraud, and condones the fraud.
For example, if one by the imposition of fraudulent
practices, has been induced to purchase goods, and
after their receipt discovers the fraud, he may re-
scind, or may affirm and have his action for the de-
ceit. But if, before delivery of the goods, he has
discovered the fraud, he may not then accept the
goods and still have an action for the deceit. He
had sustained no injury prior to the discovery of
the fraud. He was under no legal obligation to
execute a contract imposed upon him through fraud.
Fraud without damage, fallen or inevitable, is not
actionable. The loss arises from his acceptance of
the goods. This being done with knowledge of the
58. Cain v. Dickinson. 60 N. H. 371.
69. Childs v. Merrill, 63 Vt. 463; 22 Atl. 626; 14 L. R. A. 264.
346 THE LAW or WAIVEB.
fraud, he has voluntarily brought upon himself the
injury. Volenti non fit injuria. With respect to an
executory contract voidable by reason of fraud, the
defrauded party, with knowledge of the deceit prac-
ticed upon him, may not play fast and loose. He
cannot approbate and reprobate. He must deal
with the contract and with the wrong-doer at arm's
length. He may not, with knowledge of the fraud,
speculate upon the advantages or disadvantages of
the contract, receiving its benefits and at the same
time repudiating its obligations"60.
Sec. 347. But if the contract be not wholly ex-
ecutory, different principles obtain. For if the
party complaining of the fraud has partly per-
formed his part of the contract before learning of
the deceit practiced upon him, he may maintain an
action for the fraud even though he proceed to full
performance of his contract61. In line herewith, it
has been further said: "As regards what have
been termed consistent remedies, the suitor may,
without let or hindrance from any rule of law, use
one or all in any given case. He may select and adopt
one as better adapted to work out his purpose than
the others, but his choice is not compulsory or final,
and if not satisfied therewith, he may commence
60. Kingman & Co. v. Stoddard, 85 Fed. 940; 29 C. C. A. 413; 57
U. S. App, 879.
Simon v. Goodyear Co.. 105 Fed. 573 ; 44 C. C. A. 612 ; 52 L. R.
A. 745.
Saratoga Co. v. Row. 24 Wend. 74; 35 A. D. 598.
Gilmer v. Ware. 19 Ala. 252.
Minn. Thresher Co. v. Grubeu, 6 Kans. App. 665 ; 50 Pac. 67.
Grindrod v. Ango-Am. Bond Co., 85 Pac. 891.
Brown t\ Waters, 7 Neb. 424.
Males v. Lowenstein, 10 Oh. St. 512.
Downer v. Smith. 32 Vt. 1; 36 A. D. 148.
61. Haven v. Neal. 43 Minn. 315; 45 N. W. 612.
Whitney v. Allaire, 4 Denio 554 ; see, 1 N. T. 305.
Mallory v. Leach, 35 Vt. 156; 82 A. D. 625.
Nauman v. Oberle, 90 Mo. 666; 3 S. W. 380.
TORTS. 347
and carry through the prosecution of another.
Thus, where a sale of chattels is induced by the
fraud of the vendee, the vendor may prosecute the
vendee for the price of the articles in one action,
and in another for damages on account of the fraud ;
both proceeding on the theory of ratifying the sale.
But he cannot maintain either if he has rescinded the
sale, or if, on the theory of rescission, he has re-
sorted to replevin to recover the property. No
suitor is allowed to invoke the aid of the courts
upon contradictory principles of redress upon one
and the same line of facts"62.
3. CONVERSION:— Sec. 348. That the owner
of property wrongfully obtained by another may
waive his right of action for the wrong and sue for
the value of the property is a principle upon which
all the courts agree, with the proviso that the prop-
erty has been changed into money or its equivalent
by the wrong-doer63. But on this proviso there is a
hopeless division of opinion. It was in an early day
universally held that unless the property had been
so converted into money or its equivalent that the
action must be ex delicto and could not be upon an
implied agreement to compensate the owner for the
value of the property64 ; and this has been held even
62. 7 Enc. PI. & FT., 362.
63. White v. Brooks, 43 N. H. 402.
Staat v. Evans, 35 HI. 455.
Crow v. Boyd, 17 Ala. 51.
Halleck v. Mixer, 16 Cal. 574.
Shaw v. Coffin, 58 Me. 254.
•4. Jones v. Hoar, 5 Pick. 289.
Watson v. Stever, 25 Mich. 386.
Moses v. Arnold, 43 la. 187.
Pike v. Wright, 29 Ala. 332.
Mann v. Locke, 11 N. H. 246.
Randolph v. Elliott, 34 N. J. L. 184.
Center Turnpike Co. v. Smith, 12 Vt. 212.
Webster v. Drinkwater, 5 Greenl. 319 ; 17 A. D. 288.
Stears v. Dillingham, 22 Vt. 624; 54 A. D. 88.
348 THE LAW OP WAIVER.
where the property had been exchanged for other
property65, the court saying that a sale and an ex-
change were entirely different matters. And it was
held that the action was not brought to recover the
reasonable value of the property, but that the owner
was limited in the amount of his recovery to the
amount received for it by the tort-feasor66.
Sec. 349. But the above doctrines have not re-
ceived unanimous concurrence by the modern
courts, and a more liberal policy has been an-
nounced. Good reason would seem to dictate that
the wrong-doer should be subject to either form
of action that the owner might elect to invoke; for
the action is the result of his own conduct and arises
from his own voluntary act. The owner should be
permitted to waive the tort and sue upon an implied
contract or agreement to pay the reasonable value
of the property whether converted into cash or not.
Such action does not impair the rights of the tort-
feasor, for therein he has the right of set-off which
would be denied him were the owner not allowed
to elect such remedy, he could clearly not be sub-
jected to the hazard of a second action for the same
matter, and the owner would be restricted in his re-
covery to the simple value of the property, while in
an action ex delicto the plaintiff might obtain a
judgment in excess of such value. As was said in
an early case announcing this doctrine: "No party
is bound to sue in tort, where by converting the ac-
tion into an action on contract he does not preju-
dice the defendant; and, generally speaking, it is
more favorable to the defendant that he should be
6B. Fuller v. Duren, 36 Ala. 78.
66. Rand v. Nesmlth, 61 Me. 111.
Pearsoll v. Chapin, 44 Pa. St. 9.
TORTS. 349
sued in contract, because that form of action lets in
a set-off and enables him to pay the money into
court"67. And in accordance with such principles,
it has been said that the tort-feasor shall not be al-
lowed to set up his own wrongful intent in disap-
proval of the implied promise which the law would
otherwise raise against him68. The matter has been
well put as follows: "In some of the states it has
been denied, and such denial placed upon the ground
that the property remained in the hands of the
wrong-doer, and, therefore, no money having been
received by him in fact, an implied promise to pay
over the money had and received by the defendant
to the plaintiff's use did not and could not arise.
Such was the case of Jones v. Hoar, 5 Pick. 285.
But the great weight of authority in this country
is in favor of the right to waive the tort even in
such case. If the wrong-doer has not sold the prop-
erty, but still retains it, the plaintiff has the right
to waive the tort and proceed upon an implied con-
tract of sale to the wrong-doer himself, and in such
event he is not charged as for money had and re-
ceived by him to the use of the plaintiff. The con-
tract implied is one to pay the value of the property
as if it had been sold to the wrong-doer by the
owner. If the transaction is thus held by the plain-
tiff as a sale, of course the title to the property
67. Young v. Marshall, 8 Bing. 43; (21 E. C. L. 215).
68. Butts v. Collins, 13 Wend. 153.
Ford v. Caldwell, 3 Hill (S. Car.) 248.
See Article by Cooley, 3 Alb. L. J. 141.
Halleck v. Mixer, 16 Cal. 574.
Barker v. Cory, 15 Oh. 9.
350 THE LAW OP WAIVES.
passes to the wrong-doer when the owner elects so
to treat it"69.
Sec. 350. So, it is said that the doctrine that in
cases where property has been severed from real
estate by a wrong-doer, carried from the freehold
and converted to his own use, the rightful owner
may sue and recover its value as on an implied con-
tract, is well established70. And where one had torn
down the fence of another and turned his cattle on
the latter 's pasture, a bill for pasturage was al-
lowed as a counter-claim in an action brought by
the former71. Where plaintiff raised a crop on
shares on defendant's land, and the latter wrong-
fully took possession of the entire crop, the plaintiff
was permitted to sue for the value of his part of the
crop72. A person receiving money from another
for a particular purpose, to which he does not apply
it, may be sued either for money had and received
or for a breach of trust73. A bank paying a deposit
to the wrong person may be sued by the one enti-
tled to it as a debtor for the deposit, or the person
receiving the money may be sued for money had
and received; but by electing to bring one action,
the owner waives the other74. This is upon the
69. Terry v. Munger, 121 N. T. 161; 24 N. E. 272; 18 A. S. R. 803;
8 L. R. A. 216.
Pomeroy, Remedies 2d Ed. 667-9.
Abbott v. Blossom, 66 Barb. 353.
May v. Le Claiare, 11 Wall. 217; 20 L. Ed. 607.
Hill v. Davis, 31 N. H. 384.
Allen v. U. S., 17 Wall. 207; 21 L. Ed. B53.
70. Downs v. Flnnegan, 58 Minn. 113; 59 N. W. 981; 49 A. S. R
488.
22 Am. & Eng. Enc. L. 389.
71. Norden v. Jones, 33 Wis. 600; 14 A. R. 782.
72. Fiquet v. Allison. 12 Mich. 328; 86 A. D. 64.
McLaughlin v. Salley, 46 Mich. 219.
7S. Taylor v. Benham, 6 How. 233 ; 12 L.. Ed. 180.
74. Fowler v. Bowery Savings Bank, 113 N. T. 450; 11 W. E. 172;
10 A. S. R. 479 ; 4 L. R. A. 145.
TORTS. 351
principle governing the election of remedies that
where they are not concurrent a choice between
them once made is conclusive and precludes the
right to go back and choose again75.
4. EFFECT OF WAIVER:— Sec. 351. The
election of remedies between the rights arising ex
delicto and ex contractu, which election results nec-
essarily in the waiver of one, can be indicated only
by the theory of the pleadings which the plaintiff
adopts. Nothing can be ascertained from the form
of the pleadings under the code, for there is but
one form of action, and the election or character of
the action is to be determined from the general
scope and tenor of the pleadings76. The results of
electing between such remedies may be far reach-
ing, as defenses may be made to one action which
could not be made to another ; as where an infant is
sued in contract instead of in tort, the plea of in-
fancy might release him from liability while it
would not if the remedy in tort had been chosen77.
And a right of set-off may exist in an action ex con-
tractu which could not avail in an action ex delicto1*.
And an action on contract might let in a plea of the
75. BigeJow, Estoppel, 578.
Herman, Estoppel, 461.
Pomeroy, Remedies, 570.
Sumner v. Rogers, 90 Mo. 324 ; 2 S. W. 476.
Hughes v. Vt. Cop. Min. Co., 72 N. T. 209.
Becker v. Walsworth, 45 Oh. St. 169 ; 12 N. E. 1 ; 10 West. Rep.
431.
Thompson v. Howard, 31 Mich. 309.
Agnew v. McElroy. 10 Smedes & M. 552; 48 A. D. 772.
Walsh v. ChesapeaV-e, etc. Co., 59 Md. 423.
76. Neidefer v. Chastain. 71 Ind. 363; 36 A. R. 198.
77. Walker v. Davis, 1 Gray, 506.
Vasse v. Smith, 6 Cranch 225.
Elwell v. Martin, 32 Vt. 217.
Studwell v. Shapter, 54 N. Y. 249.
Carpenter v. Carpenter, 45 Ind. 142.
78. Chambers v. Lewis, 11 Abb. Pr. 206.
Allen v. Randolph, 48 Ind. 496.
352 THE LAW OP WAIVER.
statute of limitations not available in an action in
tort79. And a judgment in an action on contract
might be defeated by a plea of exemptions which
could not be invoked in an action in tort80.
While the results of a waiver of the right to sue
in tort consequent upon an election to proceed on
contract are permanent and irrevocable, a plaintiff
is not always precluded from choosing a second
time where his defeat in the first choice was solely
because he did not pursue the proper remedy/1.
79. Huffman v. Hughlett, 11 Lea 549 (Term.).
Lane v. Boi court, 128 Ind. 420.
80. Warner v. Cammack, 37 la. 642.
Schouton v. Mclntosh, 89 Ind. 593.
Davis v. Henson, 29 G-a. 345.
81. Farwell v. Myers, 59 Mich. 179.
Bulkley v. Morgan, 46 Conn. 393.
Baley v. Hervey, 135 Mass. 172.
Strong v. Strong, 102 N. T. 69.
PLEADING. 353
CHAPTER 14.
PLEADING.
1. WAIVER BY APPEARANCE:
Section
A. Defects In Process 352
(1) Special appearance 362
(2) Exemption from service 366
B. Jurisdiction —
(1) Over subject-matter 367
2. DEFECTS IN COMPLAINT:
A. In General 370
B. By Answering 373
C. Mis-Joinder —
(1) Of parties 375
(2) Of causes of action 376
D. Incapacity Of Plaintiff 377
E. Waiver Of Error In Overruling Demurrer 378
F. Objections To Venue 379
3. IN ATTACHMENTS AND GARNISHMENTS:
A. Defects In Affidavit .382
B. Defects In Writ 383
C. Waiver Of Attachment Lien 384
D. Waiver By Garnishee 385
4. IN CRIMINAL PROCEEDINGS:
A. Jurisdiction 386
B. No Offense Charged In Indictment 388
C. Former Jeopardy 389
1. WAIVER BY APPEARANCE—
!AL DEFECTS IN PROCESS :— Sec. 352. It
is not always essential to the validity or binding
effect of a proceeding against a defendant that sum-
mons should have been either regularly issued or
served upon him. In fact, various codes provide
that after the filing of a complaint the defendant
may appear, answer or demur, and in any such
event the issuance and service of summons shall be
deemed to have been waived. The function of a
Bummons is to get the defendant before the court,
a method of bringing him in involuntarily. And if
354 THE LAW or WAIVES.
lie see fit to forego his right to have the action pro-
ceed formally, to submit his side of the controversy
voluntarily to the court, his action in so doing will
have the same effect as if the matter had proceeded
with strict formality. In other words, the issuance
or service of summons may be waived by the de-
fendant, and such waiver will be inferred from his
general appearance in the case. And by such waiv-
er the defendant invokes the judgment of the court
and submits himself to its jurisdiction, after which
he cannot be heard to say that it has not power to
bind him82. Even informalities in the commencing
of an action may be waived together with the waiver
of process, as where a proceeding was commenced
by a motion and the parties went to trial
without the issuance and service of process, an ob-
jection that the proceeding was by motion and no-
tice instead of action and summons was overruled83.
Sec. 353. The same matters that waive issu-
ance and service of process are equally available as
a waiver of defects or irregularities in the issuance,
service or return thereof84, for such is equivalent to
personal service85. And while a defendant has the
82. Sealy v. Cal. Lbr. Co., 19 Oreg. 94; 24 Pac. 197.
Boulder Sanitorlum v. Vanston, 14 N. Mex. 436 ; 94 Pac. 945.
83. Hawkins v. Taylor, 56 Ark. 45; 19 S. W. 105; 35 A. S. R. 82.
14. Tex. Ry. Co. v. Cox, 145 U. S. 6S3; 12 Sup. Ct. R. 905.
Yaeger v. City, 39 111. App. 21.
Mason, etc. v. Griffin, 134 111. 330; 25 N. E. 995.
Hall v. Craig, 125 Ind. 523; 25 N. E. 538.
Rose v. Richmond Co., 17 Nev. 25; 27 Pac. 1105.
Orear v. Clough, 52 Mo. 55.
German Bank v. Ins. Co.. 83 la. 491 ; 50 N. W. 53 ; 32 A. S. R.
316.
Bar hour v. Newkirk, 83 Ky. 529.
Hazard v. Wason. 152 Mass. 268; 25 N. E. 465.
Haussman v. Burnham, 59 Conn. 117; 22 Atl. 1065.
Kaw Assoc. v. L/emke, 40 Kans. 142; 19 Pac. 337.
9i. Naye v. Noezel, 50 N. J. L. 523; 14 Atl. 750.
Dikeman v. Struck, 76 Wis. 332 ; 45 N. W. 118.
Stamphill v. Franklin Co., 86 Ala. 392; 5 So. 487.
PLEADING. 355
right to require summons to be issued and served
upon him before the court can exercise its power
over him or his property, and also the right to de-
mand that such issuance and service of process
shall be regular in all details and in strict compli-
ance with legal requirements, still the latter right,
as well as the former, he may forego or waive, and
any act of his will be sufficient to constitute such
waiver if it evince an intention, or support the in-
ference that the defect or irregularity will not be
taken advantage of. Therefore, if he desire to uti-
lize the defect as a means of escape, he must himself
proceed properly. If he claim that the court has
acquired no jurisdiction over his person by reason
of defects or irregularities in the process or service
thereof, his remedy is by special appearance and
objection to the jurisdiction, and if he go further
and enter a general appearance, or invoke the
powers of the court for any other purpose than
quashing the pretended process or service thereof,
the defects are thereby waived86. And when he
makes such special appearance, he must stand by
his guns or surrender his advantage; for, though
he may attempt by motion and then by plea to quash
the summons or service of same, lie waives the de-
fects therein by answering to the merits after the
motion and plea have been determined adversely
to him87.
Sec. 354. It being the universal rule that a gen-
16. Baker v. Bank, 63 Neb. 801; 89 N. W. 269; 93 A. S. R. 484.
Omaha Bank v. Knigrht, 50 Neb. 342; 69 N. W. 933.
Ley v. Pilger, 69 Neb. 561; 81 N. W. 507.
17. Union Pac. Co. v. De Busk, 12 Colo. 294 ; 20 Pac. 752 ; 13 A. S.
R. 221.
Ruby Co. v. Gurley, 17 Colo. 199; 29 Pac. 668.
Sears v. Starbird, 7S Cal. 225 ; 20 Pac. 547.
Campbell Co v. Marsh, 20 Colo. 22 ; 36 Pac. 799.
356 THE LAW OP WAIVER.
eral appearance of a defendant constitutes a waiver
of the issuance of process or of defects and irregu-
larities therein, it is necessary to notice what is a
sufficient appearance to produce such effect. His
appearance is evidenced by his filing in the action
his answer, demurrer or a notice to the plaintiff
that he appears in the case88. And in such cases as
those under consideration it is immaterial that the
defendant was ignorant of the irregularities that
would have rendered the proceeding void, until
after he had made his appearance. In one case
where only this question was involved, the court
said: ''Without saying whether this writ is abso-
lutely void, we are clear that it cannot be set aside
at this stage of the cause. The defendant has taken
a step by which he is regularly in court, whether
there be any process or not. We will not interfere
merely because the party acted in ignorance that
the process was void"89.
Sec. 355. The particular facts which may ren-
der a summons or the service thereof defective are
matters with which we are not here concerned. The
process may be irregular in form or defective in
substance; and the service may be defective either
because made by an incompetent person, or upon a
person not authorized to receive it, or at a time or
place where the service was unauthorized, or be-
cause some act prescribed by law has been omitted.
And in any of such events the proceeding will be
88. Walla Walla Pub. Co. v. Budd, 2 Wash. Ter. 336; 5 Pac. 602.
McCoy v. Bell, 1 Wash. St. 504; 20 Pac. 595.
Steinbach v. Leese, 27 Cal. 297.
Wyatt v. Freeman, 4 Colo. 14.
Smith v. Arapahoe Co. Ct., 4 Colo. 235.
89. Plxley v. Wlnchell, 7 Cowen 366; 17 A. D. 525; followed in:
Gardner v. Teller, 2 How. Pr. 241.
Hubbell v. Dana, 9 How. Pr. 425.
Coppernoll v. Ketcham, 56 Barb. 113.
PLEADING. 357
vacated upon motion interposed before final judg-
ment unless the defendant has entered his general
appearance in the action, or has by other conduct
voluntarily waived the irregularity90.
Sec. 356. But it is necessary, in order that a
waiver may be deduced from the conduct of a de-
fendant, that he should make an actual appearance
in the case, or do something equivalent thereto. A
recital in the record of the clerk that the defendant
had appeared at a previous term is not sufficient91.
Nor will a motion to set aside a default -entered
against several defendants who were served be held
such an appearance as will waive the failure to
serve other defendants92. But the question whether
an alleged appearance is to be held a waiver in such
cases does not resolve itself into a mere determina-
tion of the intention of the defendant93 ; for the ap-
pearance for the purpose of contesting the merits
of the cause, whether by motion or by formal
pleading, is a waiver of all objection to the juris-
diction of the court over the person of the defend-
ant, whether he intended such waiver or not94. And
the same is true if he in any manner invokes the
aid of the court without questioning its jurisdiction
over his person95. This is upon the well-established
principle that he who has the right to object to such
90. Falvey v. Jones, 80 Ga. 130; 4 S. E. 264.
91. Kimball v. Merrick, 20 Ark. 12.
92. Klemm v. Dewes, 28 111. 317.
93. Wabash Ry. Co. v. Brow, 164 U. S. 271; 17 Sup. Ct. R. 126.
94. Handy v. Ins. Co., 37 Oh. St 366.
Sentenis v. Ladew, 140 N. T. 463; 35 N. E. 650.
Meixell v. Kirkpatrick, 29 Kans. 679.
Shafer v. Hockheimer, 36 Oh. St. 215.
95. Mason v. Alexander, 44 Oh. St. 318 ; 7 N. E. 435.
Davis v. Wood, 7 Mo. 162.
Murat v. Hutchinson, 1 Harr 46 (N. J.).
Reeder v. Murray, 3 Ark. 450.
Cartwright v. Chabert, 3 Tex. 261 ; 49 A. D. 742.
358 THE LAW OF WAIVER.
defects or irregularities must do so promptly and
at the first opportunity before the party committing
the error has taken any further steps in the cause
or been misled into a reasonable belief that the ob-
jection is not to be urged06.
Sec. 357. Thus, a waiver of such objections oc-
curs where the defendant moves to vacate a judg-
ment for want of jurisdiction over his person, and
then consents to a dismissal of the motion97; or
files a motion to strike from the files all the papers
in the case for defects and irregularities98; or
moves to dismiss for want of jurisdiction over the
subject-matter, his motion being overruled99, or
causes to be given a bond to stay execution100 ; each
of such acts constitutes a general appearance of the
defendant. A voluntary appearance being equiva-
lent to service of summons gives the court juris-
diction over the defendant, even though the answer
constituting the appearance expressly reserves the
right to object to the jurisdiction of the court1. And
if he appears specially and obtains an order setting
aside service of the summons, he will be held to
have waived further process by submitting the
cause on a demurrer to the bill2. And if a defend-
ant against whom a default judgment has been ren-
dered asks to have the decree set aside for the rea-
son that the court had no jurisdiction over his per-
son and for the further reason that fraud and deceit
had been practiced upon him and that there was no
evidence to support the decree, such appearance is
96. Beall v. Blake, 13 Ga. 217; 58 A. D. 513.
97. Marsden v. Soper, 11 Oh. St. 503.
98. Maholm v. Marshall, 29 Oh. St. 611.
99. Elliott v. Lawhead, 43 Oh. St. 171.
100. Shafer v. Hockheimer, 36 Oh. St. 215.
1. Mahaney v. Penman, 4 Duer 603.
2. Leute v. Clark, 22 Fla. 515 ; 1 So. 149.
PLEADING. 359
general and is a waiver of any defects in the serv-
ice of process3.
Sec. 358. A holding above adverted to was to
the effect that a defendant appearing and putting
in an answer and proceeding to a trial on the merits
waives defective service of process and gives the
court jurisdiction over his person, notwithstanding
his appearance in the first instance was for the spe-
cial purpose of objecting to the jurisdiction of the
court and the subsequent proceedings on his part
were accompanied by a protest against jurisdic-
tion4. But this holding is not adhered to by a ma-
jority of the courts, and in fact a contrary doctrine
is announced by most courts and is supported by
the better reason. When the defendant has made
the record show a proper objection, he has done
all he can do, and should not be compelled, after
the overruling of his objection, to desert the case
and leave the opposite party to take judgment by
default5. It will be seen from the above citation
that the Supreme Court of the United States lends
the weight of its authority to the principle that a
party not properly served with process so as to give
the court jurisdiction over his person, does not
waive the objection or confer jurisdiction by an-
3. Yorke v. Torke, 2 N. Dak. 343 ; 55 N. W. 1095.
4. Union Pac. Co. v. De Busk, 12 Colo. 294; 20 Pac. 752; 1 A. *.
R. 221.
See, also : Baker v. Bank, 63 Neb. 801 ; 89 N. W. 269 ; 98 A. S.
R. 484.
5. Steamship Co. v. Tugman, 106 U. S. 118.
Jones v. Jones, 108 N. Y. 415; 15 N. E. 707.
Dlckerson v. Burlington Co., 43 Kans. 702 ; 23 Pac. 936.
Lynmn v. Milton, 44 Cal. 630.
360 THE LAW OF WAIVES.
swering over and going to trial on the merits after
he has ineffectually objected to the jurisdiction6.
Sec. 359. But without reserving properly such
objections, a waiver of issuance or service of, or
defects in process is waived if the defendant file a
demurrer to the complaint7, and answer8, agree-
ment for a continuance9, taking a stay of the order
of sale in a foreclosure case10, or filing exceptions
to a Commissioner's report11. And of course such
waiver may be produced by the written acknowl-
edgment of service and a consent by the defendant
that the cause may proceed as if summons had been
regularly issued and served12, although the con-
trary has been held by a court13, which later at-
tempted to explain its holding14. And a waiver
may occur even after judgment, for if a defendant
6. Harkness v. Hyde, 98 U. S. 476.
Dewey v. Greene, 4 Denio 94.
Willing v. Beers, 120 Mass. 548.
Warren v. Crane, 50 Mich. 301; 15 N. W. 465.
Avery v. Slack, 17 Wend. 85.
Reinstadler v. Reeves, 33 Fed. 308.
Wabash Ry. Co. v. Brow, 164 U. S. 271 ; 17 Sup. Ct. R. 126.
Ward v. George, 1 Bush 357.
7. Willman v. Friedman, 4 Idaho 209; 38 Pac. 937; 95 A. S. R. 59.
Hollinger v. Reeme, 138 Ind. 262; 36 N. E. 1114; 46 A. S. R.
402.
8. Young v. Ross, 31 N. H. 205.
German Bank v. Ins. Co., 83 la. 491 ; 50 N. W. 53 ; 32 A. S.
R. 316.
Macon Ry. Co. v. Gibson, 85 Go. 1 ; 11 S. B. 442 ; 21 A. S. R.
135.
9. Baisley v. Baisley, 113 Mo. 544; 21 S. W. 29; 35 A. S. R. 726.
10. Franse v, Armbuster, 28 Neb. 467; 44 N. W. 481; 26 A. S.
R. 345.
11. Newman v. Moore. 94 Ky. 147; 21 S. W. 759; 42 A. S. R. 343.
12. Laramore v. Chastaln, 25 Ga. 592.
Vermont Co. v. Marble, 20 Fed. 117.
Dunn v. Dunn, 4 Paige, 430.
Cheney v. Harding, 21 Neb. 65; 31 N. W. 255.
Ex Parte, Schollenberger, 96 U. S. 369.
Shaw v. National Bank, 49 la. 179.
Allured v. Voller, 107 Mich. 476 ; 65 N. W. 285.
13. Weatherbee v. Weatherbee, 20 Wis. 499.
14. Keeler v. Keeler, 24 Wis. 522.
PLEADING. 361
join in an appeal from a judgment rendered in the
lower court, he cannot object that no summons was
there served upon him15.
Sec. 360. The cases and principles above ad-
verted to are equally applicable to a case of mis-
nomer, that is, where a defendant is sued by the
wrong name. A Mississippi case succinctly states
this rule: "There are cases which hold that one
sued and served by a wrong name may disregard
the summons. All agree that one summoned by a
name not his own, and who appears and does not
plead misnomer, waives it and is bound by the judg-
ment in the wrong name. There is no sound reason
for a distinction in the two classes of cases. The
true view is, that one summoned by a wrong name,
being thus informed that he is sued, although not
correctly described by his true name, not availing
of his opportunity to appear and object, should be
precluded from afterwards objecting. Having re-
mained silent when he might and should have
spoken, he must ever afterward be silent as to this
matter"16.
Sec. 361. But where an attorney appeared for
a defendant and obtained an order extending the
15. Harmison v. Lewistown, 152. 111. 313 ; 46 A. S. R. 893.
Thorn v. Thorn, 47 W. Va. 4; 34 S. E. 759.
16. Alabama By. Co. v. Holding, 65 Miss. 255; 13 So. 846; 30 A. S.
R. 541.
1 Black, Judgments, Sec. 213.
Welsh v. Kirkpatrick, 30 Cal. 202; 89 A. D. 85.
Lafayette Ins. Co. v. French, 18 How. 404.
First Nat'l. Bank v. Jaggers, 31 Md. 38 ; 100 A. D. 53.
Hoffield v. Board, 33 Kans. 644; 7 Pac. 216.
Waldrop v. Leonard, 22 S. Car. 118.
Medway Co. v. Adams, 10 Mass. 360.
Gulnard v. Heysinger, 15 111. 288.
Parry v. Woodson, 33 Mo. 347; 84 A. D. 61.
Waterbury v. Mather, 16 Wend. 611.
See also: Johnston v. Union, 75 Cal. 134; 16 Pac. 753; 7 A. S.
R. 129.
362 THE LAW OF WAIVER.
time to file a plea, such appearance cannot be re-
garded as a general appearance sufficient to consti-
tute a waiver of defects in the service of sum-
mons17. Such appearance bears no relation to the
merits of the action, and cannot mislead the plain-
tiff into a belief that no objection to the defective
service is to be raised. The same was held true
where a defendant appeared in court and asked for
a stay of one day, and on the following day ap-
peared and objected to irregularities in the proceed-
ings18.
(1) SPECIAL APPEAKANCE:— Sec. 362.
Whatever position the various courts may assume
respecting waiver, by a general appearance, of sum-
mons or defects in the issuance or service thereof,
no doubt is expressed among them that a defendant
may appear for the special purpose of objecting to
the jurisdiction of the court over his person and not
thereby confer jurisdiction where none existed be-
fore. A different holding would be fraught with
dangers to the whole system of judicial procedure,
for on the one hand it would encourage a loose and
careless performance of official duties in the issu-
ance and service of summons which would constant-
ly increase; and, on the other hand, it would require
of a defendant that he either submit himself to the
power of the court under process defectively, irreg-
17. Mulhearn v. Press Co., 53 N. J. L. 150.
18. Nelson v. Campbell, 1 Wash. 261 ; 24 Pac. 539.
See Generally: Toland v. Sprague, 12 Pet. 300 (U. S.).
Payne v. Bank, 29 Conn. 415.
Crlstal v. Kelley, 88 N. T. 285.
Reynolds v. Lyon, 20 Ga. 225.
Louisville Co. v. Nicholson, 60 Ind. 158.
Anderson v. Morris, 12 Wis. 689.
Lane v. Leech, 44 Mich. 163; 6 N. W. 228.
Fulbrlght v. Cannefox, 30 Mo. 425.
Harris v. Guln, 18 Miss. 563.
PLEADING. 363
ularly or perhaps illegally issued or served, or that
he remain silent and subsequently incur the expense
and trouble of bringing a direct proceeding to set
aside a voidable judgment.
Sec. 363. But the contemplation of disasters
that might accrue to individuals by reason of a dif-
ferent rule becomes unnecessary when we examine
the cases bearing upon the point under discussion;
for their practically uniform holding is that where
the summons is defectively or irregularly issued or
served, the defendant may appear specially in the
case to have the summons or service set aside19;
and by such appearance he will not be held to have
waived such defect or irregularity nor voluntarily
submitted himself to the jurisdiction of the court20.
In one case the defendant set up in a special answer
that the service of process was unlawful and dis-
closed the facts constituting such illegality. The
court held that he did not waive his objection by
merely setting up the facts upon which it was
based21. And the special appearance of a non-resi-
dent defendant for the purpose of moving to set
aside a judgment rendered against him by default
19. Kinkade v. Myers, 17 Oreg. 470; 21 Pac. 557.
20. Smith v. Hoover, 39 Oh. St. 249.
Reed v. Chilson, 142 N. Y. 152 ; 36 N. E. 884.
Chubbuck v. Cleveland, 37 Minn. 466; 35 N. W. 362; 5 A. S. R.
864.
Shaw v. Quincy Co., 145 U. S. 444; 12 Sup. Ct. R. 935.
Brown v. Rice, 30 Neb. 236; 46 N. W. 489.
Dailey v. Kennedy, 64 Mich. 208 ; 31 N. W. 125.
Baily v. Schrader, 34 Ind. 260.
Chesapeake Co. v. Heath, 87 Ky. 651; 9 S. W. 832.
Simcock v. Bank, 14 Kans. 529.
Law v. Nelson, 14 Colo. 409 ; 24 Pac. 2.
Allen v. Lee, 6 Wis. 478.
Nye v. Lisoombe, 21 Pick. 263 (Mass.).
11. Chubbuck v. Cleveland, 37 Minn. 466; 35 N. W. 362; 5 A. B. R.
864.
364 THE LAW OF WAIVEB.
is not a waiver of any jurisdictional rights22, nor
is an appearance for the purpose of having the ac-
tion dismissed for the want of service, a waiver23.
So, a defendant specially appearing for the purpose
of moving to strike out an amended complaint and
asking for an extension of time in which to move
or plead until the determination of the motion, does
not make an appearance sufficient to waive service
of the summons and the amended complaint24. And
it has been said that the appearance of a party after
judgment merely to give notice of an appeal is not
such an appearance as will by itself give jurisdic-
tion25. And it is also said that if a party appear
to prosecute a writ of error, he must, upon reversal
of the judgment, appear and answer the same as if
he had been originally served with process26.
Sec. 364. Where defendants appeared specially
and objected to the jurisdiction of the court on the
ground that the service of summons was not suffi-
cient to confer jurisdiction, and after the court had
overruled this objection they appeared, generally,
and answered, it was held that such appearance was
not voluntary and did not waive the objection to
jurisdiction; nor was such objection waived or any
jurisdiction conferred by an appeal for the sole pur-
pose of reviewing the question of the sufficiency of
the summons27. It was later said in the same state
that if a special appearance to object to jurisdic-
22. Paxton v. Daniell, 1 Wash. St. 19; 23 Pac. 441.
Wright v. Boynton, 37 N. H. 9; 72 A. D. 319.
23. Merrill v. Houghton, 51 N. H. 61.
March v. East. Ry. Co., 40 N. H. 583.
24. Powers v. Braly, 75 Gal. 237; 17 Pac. 197.
26. McKinney v. Jones, 7 Tex. 598 ; 58 A. D. 83.
De Witt v. Monroe, 20 Tex. 293.
26. Woolford v. Dugan, 2 Ark. 131 ; 35 A. D. 52.
See, also : Holden v. Haserodt, 2 S. Dak. 220 ; 49 N. W. 97.
27. Miner v. Francis, 3 N. Dak. 549; 38 N. W. 343.
PLEADING. 365
tion is, after the objection is overruled, followed by
a general appearance, the question of jurisdiction
is not open to collateral attack28 ; the conclusion de-
ducible therefrom being that the jurisdiction would
be subject to direct attack. An appearance of thd
defendant under protest at a time to which an ad-
journment of a cause had been improperly had, can-
not have the effect of reviving process which has
failed from the non-appearance of the plaintiff at
the time named in the writ29.
Sec. 365. Of course a party may appear either
generally or specially by attorney the same as per-
sonally, and such appearance is equally binding
upon him. And it is said that in a suit against an
infant where the summons is not served upon him,
his guardian may appear and answer for him and
the court will thereby obtain jurisdiction over their
persons30. But this doctrine is more properly de-
nied31.
28. Parsons v. Venzke, 4 N. Dak. 452; 61 N. W. 1036; 50 A. S. R.
669.
29. Martin v. Fales, 18 Me. 23: 36 A. D. 693.
See Generally: Green v. Green, 42 Kans. 654; 22 Pac. 730.
Chahoon v. Hollenback, 16 Serg. & R. 425 ; 16 A. D. 587.
Dailey v. Kennedy, 64 Mich. 208; 31 N. W. 125.
Chesapeake Ry. Co. v. Heath, 87 Ky. 651 ; 9 S. W. 382.
Ames v. Winsor, 19 Pick. 207.
Allen v. Lee, 6 Wis. 478.
Standley v. Arrow, 13 Fla. 361.
Campbell v. Swasey, 12 Ind. 70.
30. Redmond v. Peterson, 102 Cal. 599 ; 36 Pac. 923 ; 41 A. S. R.
206.
Hopper v. Fisher, 2 Head 253 (Tenn.).
See, also: Childs v. Lauterman, 103 Cal. 387; 37' Pac. 382; 42
A. S. R. 121, where it is said that an appearance for an Infant
may be by an attorney.
81. Bonnell v. Holt, 89 111. 71.
Carver v. Carver, 64 Ind. 194.
Sullivan v. Blackwell, 28 Miss. 737.
Helms v. Colbourne, 45 Wis. 60.
Whlteside v. Barber, 24 S. Car. 37S.
Hawes on Jurisdiction, Sec. 231.
Ingersoll v. Mangam, 84 N. T. 622.
366 THE LAW OF WAIVER.
(2) EXEMPTION FEOM SERVICE :— Sec.
366. The law exempts certain persons from the
service of civil process, and renders voidable any
attempted service in contravention of such exemp-
tion. In this discussion it is not our purpose to show
what persons are entitled to this privilege, nor the
time, place nor proceedings to which the exemption
extends. But the privilege is a personal one and
may be waived by him who is entitled to assert it,
and courts are not bound to judicially notice the
right or privilege nor to grant it without a claim32.
The service is an irregularity of which the defend-
ant must avail himself promptly, and if he permit
judgment to be rendered against him during the
existence of his privilege, and fail to seek during
the progress of the proceedings to either abate or
suspend them, he thereby waives his right of exemp-
tion and the judgment against him is valid33. As
the privilege must be claimed by plea or motion
made in the particular case at the proper time34, it
follows that after entering a general appearance in
the case it is then too late to object to service, for
such objection is thereby waived, even though the
exemption be claimed in the answer35. But the
facts giving a right of exemption may be set forth
in the answer in the nature of a plea to the juris-
diction, and the want of valid service is not thereby
32. Geyer's Lessee v. Irwin, 4 Dall. 107.
tt. Thornton v. American Co., 83 Ga. 288; 9 S. E. 679; 20 A. 8. R.
320.
Prentls i>. Commonwealth, 5 Rand. 697 ; 16 A. D. 782.
14. Larned v. Griffin, 12 Fed. 590.
Peters v. League, 13 Md. 58; 71 A. D. 622.
King v. Phillips, 70 Ga. 409.
Palmer v. Rowan, 21 Neb. 452; 32 N. W. 210; 69 A, 8. R. 844.
N. Williams v. McGrade, 13 Minn. 174.
Gracie v. Palmer, 8 Wheat. 699.
PLEADING. 367
waived36. 'And it has been held that an answer to
the merits, joined with a plea to the jurisdiction,
does not amount to a waiver of the privilege37. The
matter has been well stated thus : ' ' The courts may
not ex officio take notice of the existence of the priv-
ilege. It results from its nature and character that
it may be waived, and, therefore, ought to be
claimed whenever relied on. The judicial history of
the question does not furnish an example of the al-
lowance of the privilege but upon plea or upon mo-
tion tendered or made at the period proper for the
consideration by the court whose proceedings are
sought to be abated or suspended. The proof of the
facts upon which it rests are easy of attainment,
because they are few, and may be adduced as well
in the absence as in the presence of the party"38.
B. JURISDICTION-
(1) SUBJECT-MATTER:— Sec. 367. In the
foregoing discussion we have confined ourselves to
the consideration of those matters, chiefly relating
to process, which bear upon the exercise by the
courts of jurisdiction over the persons of defend-
ants. Though perhaps not dealt with by as great
a number of cases, the question of the jurisdiction
of courts over the subject-matter of an action is
equally important. And doubtless the reason that
the question has not arisen so frequently is because
the principles involved have been from the first so
clearly outlined and so consistently followed that
no diversity of opinion has been manifested insofar
as the matter is affected by the subject of our trea-
36. Byler v. Jones, 79 Mo. 261.
37. Christian v. Williams, 35 Mo. App. 298 ; 111 Mo. 429 ; 20 S. W.
96.
31. Prentte v. Commonwealth, 5 Rand. 697 ; 16 A. D. 782.
368 THE LAW OF WAIVER.
tise. For, unlike other legal rights accruing to a
party, a defendant has the right to require the plain-
tiff to bring his action in a court having cognizance
of the subject-matter of the action as established by
legal principles, which right he cannot waive. Its
benefit he must accept whether he will or not. He
cannot consent so as to give to a court, not already
possessing it by law, the right to adjudicate any
cause, and it is an inflexible rule that any judg-
ment rendered by a court outside the vale of its
jurisdiction is null and void, incapable of ratifica-
tion and subject to collateral impeachment39. And
the rule has been succinctly stated thus: Where
the judicial tribunal has not general jurisdiction of
the subject-matter under any circumstances, no
averment can supply the defect, no amount of proof
can alter the case, no consent can confer jurisdic-
tion40. The power of the court may be conferred
in a number of ways, but however conferred, the
rule is the same. And if a defendant cannot con-
39. Webb. v. Carr, 78 Ind. 455.
Eaton v. Badger, 33 N. H. 228.
Lyles v. Bolles, 8 S. Car. 258.
Wamsley v. Robinson, 28 La. Ann. 793.
Peabody v. Thatcher, 3 Colo. 275.
Dicks v. Hatch, 10 la. 280.
San torn v. Ballard, 133 Mass. 465.
Fleischman v. Walker, 91 111. 318.
Moore v. Ellis, 18 Mich. 77.
Damp v. Dane, 29 Wls. 419.
40. Bum/stead v. Read, 31 Barb. 669.
Cooper v. Reynolds, 10 Wall. 308.
Mex. Ry. v. Davidson, 157 U. S. 201.
Watts v. Boom, etc., 47 Mich. 540 ; 11 N. W. 877.
Gilliland v. Sellers, 2 Oh. St. 223.
To the same effect, see : Doctor v. Hartman, 74 Ind. 221.
Jacks v. Moore, 33 Ark. 31.
Schuylkill Co. v. Boyer, 125 Pa. St. 226; 17 Atl. 33J.
Fields v. Walker, 23 Ala. 155.
Moore v. O'Barr, 87 Ga. 205 ; 13 S. B. 464.
Payne v. Bank, 29 Conn. 415.
Piano Co. v. Rasey, 69 Wis. 246; 34 N. W. 85.
Smith v. Myers, 109 Ind. 1 ; 9 N. E. 692.
PLEADING. 369
sent that a court shall assume jurisdiction to deter-
mine a cause, he can no more, by any conduct of his,
waive the question of non-jurisdiction; and any an-
swer, demurrer or general appearance of his is in-
effectual to constitute such waiver.
Sec. 368. Jurisdiction, however, may be limited
by statute or the constitution insofar as it affects
certain persons ; and in such cases it is held that the
dei'endant, when sued, may waive his exemption
and confer jurisdiction41. Thus, it has been held
that a judgment against a Consul of a foreign na-
tion upon default is valid ; it being said that his not
appearing and pleading to the jurisdiction of the
court is a waiver of the want of jurisdiction over
him42. However, the court said that when sued,
the Consul, if he would avail himself of his privi-
lege, must make it appear that he is a Consul, un-
less the other party shows it as by naming him as
a Consul.
Sec. 369. It being the rule that parties cannot
by their consent give to courts jurisdiction over
subjects which the law says they shall not take cog-
nizance of, it is equally true that when the jurisdic-
tion of courts once attaches to a subject, the parties
cannot by their agreement divest the courts of their
jurisdiction. This question has arisen more fre-
quently in actions on policies of insurance than in
any other, a provision usually being inserted in the
policies that the amount of a loss or other differ-
ences between the insurer and the insured shall be
referred to a board of arbitrators before suit on the
policy shall be commenced. But this clause, even
41. Bates v. Gage, 40 Cal. 183.
42. Hall v. Young, 3 Pick. 80; 15 A. D. 180.
Springfield Co. v. West, 1 Gush. 389.
370 THE LAW OF WAIVER.
though assented to by both parties, cannot ous! the
courts of their jurisdiction43. But while such agree-
ments which attempt to oust the courts of their
jurisdiction will not be supported either at law or
in equity, it is said that those which do not go to the
root of the action, but are only preliminary thereto
or in aid thereof, such as settling the amount of
damage or the time of paying it, or the like, will
be sustained44. So, where parties stipulated not to
appeal, the stipulation was ignored, the court say-
ing that the parties cannot by their agreement di-
vest courts of law or equity of their proper juris-
diction45.
2. DEFECTS IN COMPLAINT—
A. IN GENERAL:— Sec. 370. Defects in a
complaint, both in substance and in form, are mat-
ters of which the courts do not take notice, and to
be of any avail to a defendant, must be relied upon
by him by a proper objection; and it is a general
rule that if a cause be tried without objection to the
complaint by demurrer, either general or special, as
the particular case may require, the defects will be
waived if they do not affect the substantial rights
of the parties. By such failure to object, the de-
fendant admits that the complaint is sufficient. Or,
otherwise stated, all technical or formal objections
to a complaint must be raised by motion or de-
41. May on Insurance, Sec. 492.
And see: Chapter 12, this volume; sub-division "Arbitration."
2 Story's Eq. Jur. 1457.
Hill v. Moore, 40 Me. 515.
44. Wood v. Humphrey, 114 Mass. 186.
Pearl v. Harris, 121 Mass. 390.
Ins. Co. v. Morse, 20 Wall. 445.
Liverpool Co. v. Creighton, 51 Ga. 95.
Mentz v. Ins. Co., 79 Pa. St. 478.
44. Muldrow v. Norris, 2 Cal. 74; 56 A. D. 313.
Allegre v. Ins. Co., 6 Harr. & J. 408 (Md.) ; 14 A. D. 28-9.
PLEADING. 371
murrer before trial, and if not so raised, they will
be held waived. A practice which would permit
such objections to be made at the trial might be the
means of causing needless expense to litigants as
well as subjecting the court, witnesses and jurors to
unnecessary annoyance, a practice not to be encour-
aged since cases in court are to be conducted with
the least possible expense to litigants and annoy-
ance to the court consistent with the proper admin-
istration of justice46. And, applying this rule, un-
less the demurrer or objection be made in the trial
court, it cannot be raised on appeal47, for joining
issue upon a defective statement is a waiver there-
of48. And where a demurrer is proper, it must be
pertinent, for when a special demurrer is required,
the filing of a general one is a waiver of the objec-
tion which the special one would have reached49.
And if a complaint fail to state a cause of action, a
demurrer thereto, if interposed, will be sustained,
but if the defendant fail to demur, and file an an-
swer in which are stated facts which supply the
omission of the complaint, the objection, which
might have been taken advantage of by demurrer,
is thereby waived and the defect cured50. And the
same result follows where evidence is introduced
without objection in support of the defective state-
46. Orman v. Mannlx, 17 Colo. 564; 30 Pac. 1037; 31 A. S. R. 340.
Dennison v. Chapman, 105 Gal. 447 ; 39 Pac. 61.
47. Seligman v. Armando. 94 Cal. 314 ; 29 Pac. 710.
48. Davis v. WaJt. 12 Oreg. 425 ; 8 Pac. 356.
49. Daggett v. Gray, 110 Cal. 169; 42 Pac. 568.
50. Robinson Co. v. Johnson, 13 Colo. 258; 22 Pac. 459; 5 L. R. A.
769.
Hamilton v. Ry. Co., 17 Mont. 334; 42 Pac. 860; 43 Pac. 713.
Shlvely v. Semi-Tropic Co., 99 Cal. 259 ; 33 Pac. 848.
Ferera v. Parke, 19 Ores. 141 ; 23 Pac. 883.
372 THE LAW OF WAIVER.
ment51, or if the omission be supplied in an answer
to a cross-complaint52.
Sec. 371. But it is not a waiver of an objection
that might have been raised by demurrer to demand
a bill of particulars53. Nor can the ground of a
general demurrer be waived by a failure to demur,
nor, according to some courts, by a consent that the
demurrer be overruled, although this latter holding
occurs to be somewhat of an anomaly, since the con-
sent that a demurrer may be overruled may be an
acknowledgment that it is not well founded and may
be construed as evidencing an intention to abandon
the demurrer. The submission of a demurrer with-
out argument, however, is not such a waiver54. And
it is said that the objection that a complaint or peti-
tition does not state facts sufficient to constitute a
cause of action cannot be waived55. But if a de-
fendant pleads to the merits, he waives mere formal
defects, and cannot object that the petition does not
state a cause of action ; such objection can be inter-
posed only when the complaint fails altogether to
state a cause of action, and not when it is defective-
ly stated57.
Sec. 372. Where a demurrer is filed, it must
be presented to the court either by argument or by
51. Reynolds v. Dickson. 48 Wash. 407 ; 93 Pac. 910.
52. Cohen v. Knox. 90 Gal. 266; 27 Pac. 215; 13 L. R. A. 711.
53. Mulvey v. Staab, 4 N. Mex. 50 ; 12 Pac. 699.
54. Richard v. Ins. Co.. 80 Cal. 505; 22 Pac. 939.
55. Marks, etc. Co. v. Watson, 168 Mo. 133 ; 67 N. W. 391 ; 90
A. S. R. 440.
56. Shreffler v. Nadelhoffer, 133 111. 536; 25 N. E. 630; 23 A. S. R.
626.
67. Johnson v. Ry. Co.. 96 Mo. 340 ; 9 A. S. R. 351.
PLEADING. 373
an express submission without argument58. For if
the defendant file a demurrer, yet enter upon and
proceed with the trial upon the merits without call-
ing the court's attention to the demurrer or de-
manding a ruling upon it, he thereby waives the ob-
jection59. So, if he demurs, and afterwards an-
swers, but withdraws his answer before trial and
allows a judgment to be entered, he is presumed
to have waived the demurrer60.
B. BY ANSWERING:— Sec. 373. Whether
filing an answer after the overruling of a demurrer
is a waiver of the right to object to the complaint
may depend upon statutory provision, and when
such provision is made it must control. But it is
held that if a party plead over after demurrer over-
ruled, the demurrer is thereby waived and the rul-
ing thereon cannot be assigned as error61, for it
was said that it is not permissible to plead and de-
mur at the same time62. And if the demurrer is
based on several grounds, among which is that the
complaint fails to state facts sufficient to constitute
58. The same principles governing demurrers to complaints are appli-
cable when the objection is to an answer or reply ; so, the failure
of plaintiff to demur waives objection to the answer ; see :
Ritchie v. DaVls, 5 Cal. 453.
Macdougal v. Maguire, 35 Cal. 274 ; 95 A. D. 98.
U. S. v. Boyd. 5 How. 29.
Silcox v. Lang. 78 Cal. 118 ; 20 Pac. 297.
59. Wright v. Sherman, 3 S. Dak. 290 ; 52 N. W. 1093 ; 17 A. S. R.
792.
Spanish City v. Hopper, 7 Utah 235 ; 26 Pac. 293.
Olds v. Gary, 13 Oreg. 362; 10 Pac. 786.
Guthrie v. Phelan. 2 Idaho 95 ; 6 Pac. 107.
Danielson v. Gude, 11 Colo. 87 ; 17 Pac. 283.
Francisco v. Benepe, 6 Mont. 243 ; 11 Pac. 637.
Mayor v. Houston Ry. Co., 83 Tex. 548; 19 S. W. 127; 29 A. S.
R. 679.
60. Evans v. Jones, 10 Utah 182 ; 37 Pac. 262.
61. Ambler v. Whipple, 139 111. 311; 28 N. E. 841 ; 32 A. S. R. 202.
Cooke v. England. 27 Md. 14; 92 A. D. 618.
62. People v. Telephone Co., 192 111. 307; 61 N. E. 428; 85 A. S. R.
33S.
374 THE LAW OF WAIVER.
a cause of action, all grounds except this are waived
if the defendant answer after the overruling of the
demurrer63. But if the court grant leave to file an
answer after the overruling of a demurrer, it is said
that the latter is not waived by the filing of such an-
swer64; and an application for such leave is ad-
dressed to the discretion of the court below65, and
unless grossly abused will not be disturbed60.
Without such leave, however, the filing of the an-
swer is a waiver of irregularities67, or defects set
up by the demurrer, and even of the demurrer itself
or the right to rely upon it68. The waiver, though,
extends only to the objections to the ruling of the
court with reference to the form of the pleading69,
for if the complaint fail to state facts sufficient to
constitute a cause of action the objection may be
taken advantage of even after all the evidence is in.
Sec. 374. While there are many decisions sup-
porting the rules announced in the preceding sec-
tion— and a majority of them do — 70, we cannot
but agree with the fewer cases supporting a con-
trary doctrine. There is no inherent justice in hold-
63. Thalhelmer v. Crow. 13 Oolo. 397 ; 22 Pac. 779.
64. Ourtiss v. Bachman. 84 Cal. 216 ; 24 Pac. 379.
65. Powell v. Ry. Co., 14 Oreg. 22 ; 12 Pac. 83.
66. Corson v. Neatheny, 9 Colo. 212 ; 11 Pac. 82.
67. Bell v. Ry. Co.. 4 Wall. 598 ; 18 L. Ed. 338.
68. Irwin v. Henderson. 2 Cranch C. C. 167 ; Fed* Cas. No. 7084.
Madden v. Occidental Co.. 86 Cal. 445; 25 Pac. 5.
Earth v. Denel, 11 Colo. 494; 19 Pac. 471.
Young v. Martin, 8 Utah, 484; 24 Pac. 909.
Loukey v. Wells. 16 Nev. 271.
69. Anderson v. No. Pac. Lbr. Co.. 21 Oreg. 281 ; 28 Pac. 6.
70. Lynch v. Bechtel, 19 Mont. 548; 48 Pac. 1112.
Flnney v. Randolph, 68 Mo. App. 557.
Elliott v. Field. 21 Colo. 378; 41 Pac. 504.
Geiser Co. v. Krogman, 111 la. 503; 82 N. W. 938.
Baker v. Fawcett, 69 111. App. 300.
BerthoJdt v. O'Hara. 121 Mo. 88; 25 S. W. 845.
Car Co. v. League, 25 Colo. 129; 54 Pac. 642.
Hammersmith v. Avery. 18 Nev. 225 ; 2 Pac. 55.
PLEADING. 375
ing a party to have waived error by pleading over
after a demurrer interposed by him has been over-
ruled. If the objection be to merely formal defects,
no real harm could come to a party by holding him
strictly to his election, but as to those matters af-
fecting his substantial rights, just reasoning de-
mands that he be not required to place an estimate
of infallibility upon his judgment; and under the
strict rule above announced, a party demurring may
with just reason hesitate to rest upon his over-
ruled demurrer lest an error of judgment on his
part imperil his case and shut him out of a meri-
torious defense. But under the rule, he must so
wager his rights against his judgment and if he
lose, be forever precluded from any defense at all71.
Every lawyer who has had experience at the bar
can recall with what trepidation he has staked the
interests of his client on his own judgment that
error has been committed by the trial court in the
overruling of a demurrer; or with what regret and
feeling of injustice he has been compelled to file an
answer, fearing to stake so much on his judgment,
yet feeling certain that error has been committed.
And to know that a rule permitting an exception to
the overruling of the demurrer, and a subsequent
answer without waiving the exception would preju-
dice neither party is stronger persuasion in favor of
the rule.
C. MIS-JOINDER—
(1) OF PARTIES:— Sec. 375. Defect or
mis- joinder of parties appearing on the face of a
complaint is ground for demurrer, and when not ap-
71. Hurley v. Ryan, 119 Cal. 71; 51 Pac. 20.
Pence v. Durbln, 1 Idaho, 550.
Seaboard Co. v. Woodson, 94 Ala. 143; 10 So. 87.
376 THE LAW OP WAIVER.
pearing on the face of the complaint, objection
thereto may be taken by answer. If no such objec-
tion be taken, either by answer or demurrer, it is
waived72. Therefore, defect of parties defendant
cannot be questioned for the first time in the appel-
late court when it appears that the persons who
ought to have been made defendants are not indis-
pensable parties 'and that a decree can be entered
between the parties to the action without them78.
But the rule is not applicable if the omitted party
be indispensable to a complete determination of the
action74. Nor will the filing of an answer after the
overruling of a demurrer for such cause be a waiver
of the defect75. And it is said that a general de-
murrer admits the sufficiency of the parties, but the
defect may afterwards be raised by answer76, but
that it cannot be raised by an objection to the intro-
duction of evidence77.
(2) OF CAUSES OF ACTION :— Sec. 376.
The codes usually make mis- joinder of causes of
action a ground of demurrer. But whatever the
mode prescribed to be taken, the objection must be
made in the trial court or it will be deemed to have
72. Mather v. Dunn, 11 S. Dak. 196 ; 76 N. W. 922 ; 74 A. S. R. 788.
Summers v. Heard, 66 Ark. 550; 50 S. W. 78; 51 S. W. 1057.
Swartzel v. Karnes, 2 Kans. App. 782 ; 44 Pac. 41.
Franke v. St. Louis, 110 Mo. 516; 19 S. W. 938.
Stephens v. Harding, 48 Neb. 659 ; 67 N. W. 746.
Passumpsic Bank v. Buck. 71 Vt 190 ; 44 Atl. 93.
73. Great West. Co. v. Woodmas Co., 12 Colo. 46; 20 Pac. 771; 13
A. S. R. 204.
Conklin v. Barton, 43 Barb. 435.
Seeding v. Bartlett. 35 Mo. 90.
74. Peck v. Peck, 33 Colo. 421; 80 Pac. 1063.
75. Town v. Long, 144 Cal. 362 : 77 Pac. 987.
76. Johnson v. Bott, 18 Colo. App. 469; 72 Pac. 612.
Qrisson v. Hofius. 39 Wash. 51 ; 80 Pac. 1002.
77. Dickerson v. Spokane, 26 Wash. 292; 66 Pac. 381.
PLEADING. 377
been waived78. The objection must be taken by a
special demurrer, for a general demurrer is a
waiver of the objection79, and the same result fol-
lows from pleading over80. Some statutes, how-
ever, provide that a demurrer and answer may be
filed together, in which event the demurrer is not
waived by the answer81.
D. INCAPACITY OF PLAINTIFF :— Sec.
377. The states which have adopted the code sys-
tem make the objection that plaintiff has not legal
capacity to sue a ground of special demurrer if the
defect appears on the face of the complaint or peti-
tion, and if it does not so appear the defect must be
set up and relied upon in the answer. And the
failure to so take advantage of it prior to the trial
is a waiver of it 82. A general demurrer is not suf-
ficient to reach the objection, for the facts showing
the capacity of the plaintiff to sue are not facts con-
stituting the cause of action83. Thus, if plaintiff
be a foreign executor and, therefore, not qualified
to sue, the objection must be made by demurrer if
78. Maisenbacker v. Society, 71 Conn. 369; 42 Atl. 67; 71 A S. R.
213.
McKune v. Mill Co., 110 Cal. 480 ; 42 Pac. 980.
Porter v. Banking Co., 36 Neb. 271; 54 N. W. 424.
Jones v. Hughes, 16 Wis. 683.
Henney Co. v. Higham, 7 N. Dak. 45; 72 N. W. 911.
Barlow v. Leavitt. 12 Gush. 483.
Corbett v. Wrenn, 25 Oreg. 305 ; 35 Pac. 658.
Youngs v. Leely, 12 How. Pr. 395.
White v. Delschneider, 1 Oreg. 254.
Fuhn v. Weber. 38 Cal. 636.
79. Ruhling v. Hackett, 1 Nev. 360.
Daggett v. Gray, 110 Cal. 169; 42 Pac. 568.
80. Shoelkoff v. Leonard, 8 Colo. 159; 6 Pac. 209.
81. State t?. Edwards, 33 Utah, 243; 93 Pac. 720.
82. Meyer v. Earth, 97 Wis. 352 ; 72 N. W. 748 ; 65 A. S. R. 1J4.
Palmer v. Davis, 28 N. Y. 242.
Miller v. Luco, 80 Cal. 257 ; 22 Pac. 195.
83. Bank v. Edwards, 11 How. Pr. 216.
Myers v. Machado, 6 Abb. Pr. 198.
378 THE LAW OF WAIVER.
the complaint disclose the incapacity, or by answer
if it do not, for otherwise, objection at the trial
would be overruled 84.
E. WAIVEE OF ERROR IN OVERRULING
DEMURRER :— Sec. 378. Where a demurrer is filed
to a pleading and is sustained by the court, any er-
ror in the order sustaining the demurrer is waived
by filing an amended pleading covering the points
raised by the demurrer85, and the same is true if the
pleading is an amendment of an amendment86 ; and
even in a case where the court refused to permit the
amended pleading to be filed, the offer to file it was
held a waiver87.
F. OBJECTIONS TO VENUE:— Sec. 379.
The county in which an action shall be tried may be
agreed upon by the parties. Or if the county in
which the action is brought is not the proper one
for the trial thereof, the action may nevertheless be
tried therein unless the defendant by proper objec-
tion demand that it be tried in the county prescribed
by law. But the objection must be raised prior to
trial or it will be deemed waived. And any conduct
on the part of the defendant manifesting satisfaction
with the venue until after the trial, or his abiding
84. Robbing v. Wells, 26 How. Pr. 15.
And see: Connor's Adm. v. Paul, 12 Bush 144.
Duncan v. Whedbee, 4 Colo. 143.
Mullin's Appeal, 40 Wls. 1E4.
Wright v. Wright, 72 Ind. 149.
S. W. Ry. Co. v. Paulk, 24 Ga, 370.
Rucks v. Taylor, 49 Miss. 560.
Palmer v. Ins. Co., 84 N. Y. 67.
Gregory v. McCormick, 120 Mo. 657; 25 S. W. 565.
85. Gowan v. Gilson, 142 Ind. 328; 41 N. E. 594.
Scheiber v. Tel. Co., 153 Ind. 609 ; 55 N. E. 742.
Louisville R. Co. v. House, 104 Tenn. 110; 56 S. W. 838.
Roderick v. Ry. Co., 7 W. Va. 54.
86. Brown v. Case Plow Works, 9 Kans. App. 685 ; 59 Pac. SOI.
87. Anthony v. Slayden. 27 Colo. 144 ; 60 Pac. 826.
PLEADING. 379
by it until the matter has proceeded to a hearing
will be sufficient to constitute a waiver.
Sec. 380. The venue of an action has always
been a privilege which the defendant could exact or
waive, even as to districts. The right of a defendant
to be sued in that of his domicile may be waived,
and is waived by his failure to object88. If to be
sued in the district of one 's domicile is in the nature
of a personal exemption or privilege which may be
waived, surely to be sued in a certain division of
that district is of a like nature and may be waived.
Under the act of Congress of February 18, 187589,
which exempted national banks from suits in state
courts in counties other than the county in which the
bank was located, it was held that such exemption
was a personal privilege which could be waived and
was waived by appearing in a suit brought in another
county and not claiming the immunity thus granted90.
Thus, where on motion of the defendant the action
was transferred to and tried in the judicial division
of its residence, the objection to the venue of the
action which might have been raised was waived by
such procedure91. And a stipulation for the removal
of a cause to another county waives an objection that
it was not brought in the proper county92, as does
88. Central Trust Co. v. McGeorge, 151 U. S. 129; 38 L. Ed. 98.
89. 18 Stat. At. L. 316, Chap. 80.
90. First National Bank v. Morgan. 132 U. S. 141; 32 L. Ed. 282.
91. Nelson v. Willamette, 70 Fed. 374; 31 L. R. A. 715, citing:
Barry v. Foyles, 26 U. S. 1 ; 1 Pet. 314 ; 7 L. Ed. 158.
Pollard v. Dwlght, 4 Cranch 421 ; 2 L. Ed. 666.
Harkness v. Hyde, 98 U. S. 476 ; 25 L. Ed. 237.
St. Louis Ry. Co. v. McBryde, 141 U. S. 127 ; 35 L. Ed. 659.
Eddy v. Lafayette, 49 Fed. 807 ; 4 U. S. App. 247.
92. Gay v. Brlerfield Co.. 94 Ala. 303; 11 So. 353; 33 A. S. R. 1*2:
16 L. R. A. 564.
380 THE LAW OF WAIVES.
also the appearance of the defendant and filing an
answer in the cause93.
Sec. 381. Where there has been a change of
venue granted, any objections to such change are
waived by a general appearance filed in the court
to which the cause is sent94. This is especially true
if the parties proceed to trial95, or file pleas in the
cause96; or even if a motion for a continuance be
filed, the mover thereby waives the right to object97.
3. IN ATTACHMENTS AND GARNISH-
MENTS :
A. DEFECTS IN AFFIDAVIT :— Sec. 382.
Where defects exist in an affidavit filed as a basis
for an attachment, they are fatal to the proceeding
if taken advantage of at the proper time and in the
proper manner. But they must be so taken advan-
tage of as they are not matters which courts will
judicially notice unless they are called to their atten-
tion by proper objections by the party affected by
them. Thus, where the averments of the affidavit
are traversed in the regular manner by the defend-
ant, and the matter proceeds to trial upon such
traverse without any objection to the sufficiency of
the affidavit, and the issues are found against the
93. Granville, etc. v. State Board, 106 N. Car. 81; 10 S. E. 1002.
Bishop v. Silver Lake Co.. 62 N. H. 455.
Ohio Ry. Co. v. Morey. 47 Oh. St. 207; 24 N. E. 269; 7 L. R. A.
701.
Sheenan Co. v. Sims, 36 Mo. App. 224.
Benev. Assoc. v. Woods, 21 111. App. 372.
McLemore v. Scales, 68 Miss. 47 ; 8 So. 844.
94. Schaeffner's Est., 45 Wis. 614.
Street v. Chapman, 29 Ind. 142.
95. Waller v. Logan, 5 B. Mon. 515.
Yater v. State, 58 Ind. 299.
Prussel v. Knowles, 5 Miss. 90.
96. Burnham v. Hatfleld, 5 Blackf. 21.
97. Solomon v. Norton, 2 Ariz. 100; 11 Pac. 108.
PLEADING. 381
defendant, such proceedings without calling the At-
tention of the court to defects in the affidavit amount
to a waiver of such defects, and they cannot later
be urged as ground for reversal98. The rule is the
same whatever the defect in the affidavit, but it will
not be invoked to render valid an attachment pro-
ceeding carried on without the filing of an affidavit,
for such affidavit is the basis upon which the entire
proceeding rests.
B. DEFECTS IN WEIT:— Sec. 383. The rule
above mentioned as applying to defects in affidavits
in attachment and garnishment proceedings is
equally applicable if the defects are in the writ is-
sued upon such affidavit. They must be taken ad-
vantage of before trial and in the court below or the
defects are waived and the proceeding will be as
valid as if the writ had been regular in all details.
Or, as it is said, defects in an attachment writ are
waived where the defendant appears in the action
and makes no objection in the trial court". In this
case the writ was issued by the clerk of the probate
court instead of the clerk of the district court. But
where the defendant in an attachment suit died be-
fore service of the writ upon him, and his executrix,
after her motion to quash the writ had been over-
ruled, appeared and filed an answer in the principal
suit, such appearance did not waive or cure the want
of service upon her intestate100. If a defendant in
an attachment suit execute a re-delivery bond, he is
held to have acknowledged notice of the suit and to
be bound to enter his appearance or suffer default
98. De Stafford v. Gartley, 15 Colo. 33 ; 24 Pac. 580.
Rice v. Hamptman, 2 Colo. App. 565 ; 31 Pac. 862.
99. Romero v. Wagmer, 3 N. Mex. 167 ; 3 Pac. 50.
100. Thompson v. White, 25 Colo. 226 ; 54 Pac. 718.
382 THE LAW OF WAIVEE.
to be taken against him1. But the giving of such a
bond is not a waiver of the right to have the writ
rightfully issued2, nor is it a waiver of irregulari-
ties in the attachment proceedings3. Of course a
general appearance by the defendant and a traverse
of the allegations of the attachment affidayit con-
stitute a waiver of all defects in the notice or its
publication4, for by such appearance the defendant
submits himself to the jurisdiction of the court,
which is all that could be accomplished by the writ
or notice. But a waiver that would be effective be-
tween the plaintiff and defendant might not be bind-
ing upon third parties. Thus, where an attachment
was levied upon real estate, and the defendant was
not served, and the case was prosecuted to judgment
on publication of notice to him; and after the sale
of the land on execution the defendant appeared and
moved to set aside the judgment not only on account
of the illegality of the publication but because the
judgment was rendered on insufficient evidence ; this
was held to be an appearance to the merits and a
submission to the jurisdiction of the court which, so
far as the defendant was concerned, might cure the
original defects ; but that it did not so far validate
the proceedings db initio as to vitiate a conveyance
of the land made by him during the pendency of
the attachment proceedings5.
I. Richard v. Mooney, 39 Miss. 857.
Blyler v. Kline. 64 Pa. St 130.
Peebles v. Weir, 60 Ala. 413.
Chastaln v. Armstrong, 85 Ala. 216 ; 8 So. 78S.
X. Avet v. Albo. 21 La. Ann. 349.
I. New Haven Co. v. Raymond, 76 la. 225 : 40 N. "W.
4. Williams v. Stewart, 3 Wis. 773.
i. Anderson v. Coburn, 27 Wis. 658, cited in:
Drake on Attachment. Art 446a.
PLEADING. .383
C. WAIVER OF ATTACHMENT LIEN:—
Sec. 384. Courts do not cling as strictly to waivers
of attachment liens if the question arise only be-
tween the attaching plaintiff and defendant as where
the rights of other attaching creditors are involved.
It was held that where the first of several attachers
having a claim large enough to absorb all the prop-
erty attached, by agreement with the defendant took
all the property in satisfaction of the debt and dis-
continued the suit, as against subsequent attachers
who perfected their respective liens by judgment and
execution, the first attacher waived his lien and ob-
tained no title to the property6. But in the absence
of rights of other attachers or of third parties, an
attaching creditor does not waive his lien by taking
judgment and selling the attached property while
an appeal from the order dissolving the attachment
is pending7. And mere irregularities in an attach-
ment proceeding do not affect the attachment so as
to give subsequent attachers the right to make them-
selves parties for the purpose of defeating the ac-
tion8.
D. WAIVER BY GARNISHEE:— Sec. 385. A
garnishee may waive defects in an affidavit upon
which the proceeding is based the same as a defend-
ant may. Thus, where a garnishee appears and an-
swers and proceeds to a hearing upon citation issued
6. Brandon Iron Co. v. Gleason, 24 Vt. 228.
Cole v. Wooster, 2 Conn. 203, cited in:
Drake on Attachment. Art. 262.
7. Ryan v. Maxey, 14 Mont. 81; 35 Pac. 515.
8. Seibert v. Switzer. 35 Oh. St. 661.
Henderson v. Stetter, 31 Kans. 56; 2 Pac. 849.
Scrivener v. Dietz. 68 Cal. 1 : 8 Pac. 609.
Nenny v. Schluter. 62 Tex. 327.
Rudolph v. McDonald, 6 Neb. 163.
Bank v. Jandon. 9 La. Ann. 8.
THE LAW OF WAIVER.
on an affidavit for an order for the examination of
himself as garnishee, any objection to the sufficiency
of the affidavit9 or of the service of the writ10 is
thereby waived. But it is said that when the sum-
mons is void for not complying with the require-
ments of a statute, an appearance and answer by
the garnishee will not waive the defects, and the
court will acquire no jurisdiction, especially if the
defendant be a non-resident and make no appear-
ance11.
4. IN CRIMINAL PROCEDURE:
A. JURISDICTION:— Sec. 386. The prin-
ciples hereinbefore adverted to as affecting juris-
diction of courts in civil actions are analagous to
those applicable in criminal cases. A court to ren-
der its acts valid and enforceable, must acquire and
exercise proper jurisdiction over the person of the
defendant as well as take lawful cognizance of the
offense with which he is charged. And here, the
same as in civil jurisprudence, jurisdiction over the
person may be given by a voluntary appearance of
the defendant, or the want of it may be waived by
his pleas entered in the proceedings as if he had
been brought before the court by the successive
formalities of the law12. But jurisdiction of an of-
fense is a matter derived solely by virtue of pro-
9. Coffee v. Haynes, 124 Cal. 561; 57 Pac. 482; 71 A. S. R. 99.
10. Wisecarver v. Braden, 146 Pa. St. 42 ; 23 Atl. 393.
Rosenberg v. Chaflin Co., 95 Ala. 249; 10 So. 621.
11. Phoenix Co. i>. Street, 9 Okla. 422; 60 Pac. 221.
12. Rutter v. State. 1 la. 99.
People v. Myers, 1 Colo. 508.
Mills v. Commonwealth. 13 Pa. 627.
U. S. v. Rogers, 23 Fed. 658.
State v. Kinney, 41 la. 424.
PLEADING. 385
visions of law and can in no event be imparted or
conferred by consent of the party who is to be af-
fected thereby. So, it follows that a defendant can-
not waive the question of the jurisdiction of the
court over the offense and any attempt to do so will
render the whole proceeding void, including sentence
if it has been passed, and the court may release the
prisoner on habeas corpus13, or the objection may
even be raised in an appellate court14, and such a
case cannot be carried into the appellate court by
agreement15.
Sec. 387. As noted above, however, it is only
the right given by law to be tried by a court having
proper cognizance of his offense which a defendant
cannot waive. All other objections touching the
court's jurisdiction he may insist upon or waive as
he may think best suited to his interests. Thus a
prisoner has the right to be brought to the state
which is the scene of the offense charged against
him, by proper extradition papers ; but if he volun-
tarily accompany the officer without the use of such
papers, he thereby waives such right and cannot
thereafter object to the regularity of the papers16.
B. NO OFFENSE CHAKGED IN INDICT-
MENT:— Sec. 388. Since the principles governing
in civil actions, as hereinbefore noted, are to be ap-
plied to criminal cases in so far as they may, it fol-
13. Rice v. State, 3 Kans. 141.
People v. Durell. 1 Idaho 30.
Reich v. State. 53 Ga. 73.
Ex Parte Snyder, 64 Mo. 58.
Simpson v. U. S., 9 How. 571 (U. S.)
14. Jackson v. Commonwealth. 13 Gratt. 801.
15. Rutter v. State. 1 la. 99.
People v. Myers, 1 Colo. 508.
16. State v. Cutshall. 109 N. Car. 764 ; 14 S. E. 107 ; 26 A. S. R.
599.
386 THE LAW OF WAIVER.
lows that as in civil actions the complaint or petition
must state a cause of action — which requirement can-
not be waived by the defendant — so the indictment
or complaint in a criminal prosecution must charge
an offense against the defendant, or the proceeding
or any judgment rendered thereon will not be sus-
tained. And this requirement cannot be waived by
the defendant17, although statutes have provided
means for liberal amendments of defective charges.
There can be no legal punishment without an accusa-
tion, and every wrongful fact with each particular
modification thereof which, in law, is required to be
taken into account in determining the punishment
upon a finding of guilty, must be alleged in the in-
dictment. For in every criminal prosecution the
accused shall enjoy the right to be informed of the
nature and cause of the accusation against him18,
and this rule requires that the indictment or infor-
mation shall contain the essential elements of the
crime charged19.
C. FORMER JEOPARDY:— Sec. 389. The
right of a defendant not to be put in jeopardy a sec-
ond time for the same offense is as sacred as the
right to a trial by jury, and is guarded with as much
care by the common law and the constitution20. But
it is a right which may be availed of by a defendant
only by a special plea for the support of which it is
necessary to show the legal conviction or acquittal
of the defendant in a court of competent jurisdic-
tion and also the identity of the person convicted
or acquitted and the offense for which he was tried.
17. Pattee v. State. 109 Ind. 545 : 10 N. E. 421.
18. U. S. Const Amend. Art. 6.
19. Rig-fra v. State. 104 Ind. 262 ; 3 N. E. 886.
>•. Dinkey v. Commonwealth. 17 Pa. St. 126; 55 A. D. 542.
PLEADING. 387
The special plea must be made in the trial court or
this defense will be deemed waived21. And when-
ever a verdict, whether valid in form or not, has
been rendered on an indictment, either good or bad,
and the defendant moves in arrest of judgment or
applies to the court to vacate a judgment already
entered for any cause, as for many causes he may,
he will be presumed to waive any objection to being
put a second time in jeopardy and .so he may or-
dinarily be tried anew. If the verdict against the
prisoner is wrong, and it was produced by some er-
ror of the court to which he objected, a just view of
the constitutional guaranty would permit him to
have the error corrected without waiving his right
to object to a second jeopardy. Still the practice
in most cases has been otherwise22. And while the
plea is not permissible as a defense under the gen-
eral issue and must be specially pleaded23, it is said
that such is not necessary where two trials of the
same case were in the same court24.
Sec. 390. As to what constitutes a second jeop-
ardy is a matter upon which not all courts agree,
and it is a question with which we are not here to
contend. Our object in these lines is to present the
principles and proceedings by which a defendant is
held to have waived or surrendered, or not to have
waived or surrendered the protection in this behalf
which organic law has guaranteed to him. And one
of the primary principles in this regard is that the
21. In re Allison, 13 Colo. 525 ; 22 Pac. 820 ; 16 A. S. R. 224.
22. Bishop, Crlm. Law, Sec. 998-9, cited and followed In:
Jones v. State, 25 Tex. App. 716 ; 8 A. S. R. 452.
23. Rickles v. State, 68 Ala. 538.
State v. Morgan, 95 N. Car. 641.
34. Robinson v. State. 21 Tex. App. 160; 17 S. W. 632.
Foster v. State, 25 Tex. App. 544 ; 18 S. W. 664.
388 THE LAW OF WAIVER.
procuring of a new trial is a waiver of the privilege,
for the defendant thereby consents to the second
trial, and the rule applies that a party cannot ob-
ject to that to which he has consented25. The rea-
sons are obvious in criminal cases and have been well
stated thus : The new trial is often the convicted
prisoner's only safeguard left. Deny him that on the
plea that he shall not twice be put in jeopardy for
the same offense, and you stab him to the heart with
the weapon intended only for his security and de-
fense. Such a construction of the rule would let him
be hung, however innocent, in order to avoid the
hazard of life or limb against which he is to be se-
cured by the rule made for his benefit. Judges may
be perplexed in giving interpretation and applica-
tion to the rule, and may stick in the bark in so do-
ing; but it seems that an innocent man, or guilty
either, convicted wrongfully and sentenced to be
hung, with the halter around his neck, could not be
long nor doubtful in deciding for himself which con-
struction of the rule was for his interest and neces-
sities, which was in harmony with the spirit of jus-
tice and humanity that dictated the prisoner's
safety26.
Sec. 391. But the right to interpose a plea of
former jeopardy was held not waived by the filing
25. Gannon v. People. 127 111. 507: 21 N. E. 525; 11 A. S. R. 147.
State v. Hart. 33 Kans. 218; 6 Pac. 288.
State v. Jenkins. 84 N. Car. 812.
Kendall v. State. 65 Ala. 492.
State v. Patterson, 88 Mo. 88.
Territory v. Dorman. 1 Ariz. 56; 25 Pac. 516.
Cochrane v. State, 6 Md. 400.
Small «. State. 63 Ga. 386.
State v. Blaisdell. 59 N. H. 328.
State v. Knouse. 33 la. 365.
26. Younser v. State. 2 W. Va. 579 : 98 A. D. 791.
Sutcliffe v. State. 18 Oh. 469 ; 51 A. D. 459.
PLEADING. 389
of a motion to set aside a verdict rendered by the
jury in the absence of the defendant27, the court not-
ing that a distinction existed between such a pro-
cedure and a motion for a new trial. This proposi-
tion, however, has been denied on the theory that
such absence was itself a waiver28. The criterion,
it occurs to us, should be whether or not he volun-
tarily absented himself.
Sec. 392. Fraud has the effect of vitiating pro-
ceedings in a criminal prosecution as much as in a
civil action. And where it is practiced by a defend-
ant to procure his acquittal, it constitutes a waiver
of his right not to be twice put in jeopardy for the
same offense29. And while not constituting a waiver
—which can be produced only by some act of the
defendant himself — the result is the same if the
fraud be the work of a third party and unknown to
the defendant30. The fraud may be a prosecution
sought and procured by the defendant himself in
the hope of escaping a subsequent prosecution and
heavier punishment, but whatever it may be, the
prisoner, by such fraud, bars himself from the right
to say that he has once been prosecuted on the
charge and should not again be put in jeopardy31.
27. Nolan v. State. 55 Ga. 521; 21 A. R. 281.
Cook v. State. 60 Ala. 39; 31 A. R. 31.
28. Temple v. Commonwealth, 14 Bush 769; 29 A. R. 442.
29. State v. Swepson, 79 N. Car. 632.
30. State v. Washington, 89 N. Car. 535 ; 45 A. R. 700.
31. State v. Simpson. 28 Minn. 66; 9 N. W. 78; 41 A. R. 269.
Watkina v. State. 68 Ind. 427 ; 34 A. R. 273.
Big-ham v. State. 59 Miss. 529.
State v. Reed. 26 Conn. 202.
Commonwealth v. Dascom, 111 Mass. 404.
Warriner v. State, 3 Tex. App. 104 ; 30 A. R. 124.
McParland v. State. 68 Wis. 400; 32 N. W. 226; 60 A. R. 867.
State v. Cole, 48 Mo. 70.
State v. Nichols, 38 Ark. 550.
390 THE LAW or WAIVBE.
CHAPTER 15.
CRIMINAL PRACTICE.
Sectiom
1. IN GENERAL 393
2. RIGHT TO JURY TRIAL 394
3. JURY OF FEWER THAN TWELVE 396
A. In Felonies 397
B. In Misdemeanors 398
4. WAIVER OF PRIVILEGE FROM SELF-CRIMINA-
TION 399
6. RIGHT OF ACCUSED TO BE PRESENT AT TRIAL. 403
A Crimes Less Than Capital 404
B. Capital Offenses 405
C. Who May Waive The Right 406
1. IN GENERAL:— Sec. 393. The following
considerations in the chapter on Civil Practice cover
a greater part of the field of criminal practice, as
the rules treated are equally applicable to the two.
But it is necessary to here consider a few subjects
strictly under the operation of the rules and prin-
ciples of practice in criminal cases. As far as the
law of waiver has to do with the practice in crim-
inal cases, it may be noted that, while in civil ac-
tions, a party having knowledge of a right belong-
ing to him may insist upon that right or waive it
as he may think best suited to his interests, such
is not true in criminal actions as to all rights which
a defendant has, for some of these he cannot be de-
prived of even with his own consent.
2. EIGHT TO JURY TRIAL:— Sec. 394.
Some differences of opinion exist among the authori-
ties as to the power of an accused to waive the right
to be tried by a jury and submit the question of his
guilt to the court. The trend of the authorities
CRIMINAL PRACTICE. 391
seems to be, however, to the principle that in fel-
onies a defendant cannot waive this right but that
in misdemeanors he may, the distinction thus made
being based upon the proposition that defendants in
the latter class of cases were not absolutely given a
jury trial at common law, therefore such was not
fully guaranteed to them by the Constitution32. We
recognize this principle as one adhered to by nearly
all the authorities, but we confess to a hesitancy in
accepting as our own conclusion the propriety of
allowing a defendant in one class of cases to forego
his right to a jury trial and refusing the discretion
to a defendant in another class of crimes. Eeason
would dictate that the grade of the crime should be
immaterial. The requirement of a jury trial is se-
cured by the constitution upon a principle of public
policy33, as well as through considerations for the
defendant. And that public policy is contravened
and the rights of the accused jeopardized by putting
him in a place where temptations may be held out
to him to waive a jury trial and take his chances
with the court in a case where his crime is one of
low grade or one that would subject him to light
punishment, as much as where the punishment
might be death or life imprisonment. Another dis-
tinction has been made between cases in which the
constitution or statute gives the accused the right to
32. Dailey v. State. 4 Oh. St. 58.
"Ward v. People, 30 Mich. 116.
Arnold v. State. 38 Neb. 752 ; 57 N. W. 378.
State v. Davis. 66 Mo. 684.
State v. Worden. 46 Conn. 349.
Darst v. People. 51 111. 286.
Murphy «. State. 97 Ind. 579.
33. State v. Lockwood. 43 Wls. 405, holding the right to a Jury
trial upon indictment or information one which can not be
waived ; a doctrine discarded for a more reasonable one ?n :
In re Staff, 63 Wis. 285 ; 23 N. W. 587.
392 THE LAW OP WAIVER.
a jury trial and those cases where a jury trial is
expressly required. In the latter class of cases, it is
said that in no event can a jury trial be waived34.
But it is said that the right may be waived in pros-
ecutions for misdemeanors where the right to a
jury trial is given by statute in cases which could
be tried without a jury at common law35.
Sec. 395. Judge Cooley says: "The infirmity
in case of a trial by a jury of less than twelve, by
consent, would be that the tribunal would be one
unknown to the law, created by mere voluntary act
of the parties ; and it would in effect be an attempt
to submit to a species of arbitration the question
whether the accused has been guilty of an offense
against the state." We suppose the same reason-
ing would apply to the waiver of a jury. But this
right to a jury is no more pronounced by the con-
stitution than other rights given a defendant. He
cannot twice be put in jeopardy for the same offense.
Yet unless he properly object to an attempt to twice
jeopardize him, he will be held to have waived his
privilege. And the same is true of his right to have
the witnesses confront him, to have a speedy trial,
and many other rights conferred upon him by con-
stitutional provision. Then where is the difference
between felonies and misdemeanors except in the
degree of punishment? A misdemeanor may be as
disgraceful and humiliating to one man as a felony
to another. And while we are aware that the pre-
ponderance of authority is in favor of the distinction
and refuses to permit a waiver in felony cases, we
do think that the better reasoning sanctions a waiver
34. Arnold v. State. 38 Neb. 752; 57 N. W. 378.
35. People v. Weeks, 99 Mich. 86; 57 N. W. 1091.
CRIMINAL PRACTICE. 393
in both classes of cases either of the whole jury or
any number of jurors, thus giving to the accused
an additional benefit of saying whether it is to his
own best interests to be tried by the court or a jury.
3. JUEY OF FEWER THAN TWELVE:—
Sec. 396. The courts are by no means harmonious
in their conclusions regarding the power of a de-
fendant in a criminal prosecution to waive his right
to be tried by the full panel of jurymen as provided
by law and consent to be tried by fewer. Although
a few cases36 seem to pronounce the doctrine that
an accused person may in all cases waive his con-
stitutional right to be tried by the full number of
jurors, yet in nearly all cases the question is de-
cided by the courts according to the degree of the
crime with which the defendant is charged.
A. IN FELONIES:— Sec. 397. By far the
greater number of authorities hold to the doctrine
that in cases of felony the constitutional right to be
tried by a common-law jury of twelve men cannot
be waived, and that a verdict of a jury of fewer than
that number, even by consent of the accused, will
be set aside as a nullity37. To this opinion the Su-
preme Court of the United States gives the weight
of its authority38. There are many considerations
and reasons why this doctrine should be enforced.
For a criminal prosecution involves public wrongs,
a breach and violation of public rights and duties
36. State v. Grossheim. 79 la. 75 : 44 N. W. 541.
State v. Kaufman, 51 la. 578; 2 N. W. 275; 33 A. R. 148.
State v. White. 33 La. Ann. 1218.
And see: Alfred v. State. 6 Ga. 483.
37. State v. Mansfield. 41 Mo. 470.
Arnold' v. State. 38 Neb. 752 ; 57 N. W. 378.
Allen v. State. 54 Md. 461.
38. Thompson v. Utah. 170 U. S. 343 ; 42 L. Ed. 1061.
394 THE LAW OF WAIVER.
which affect the whole community considered as a
community, in its social aggregate capacity, and the
end such suits have in view is the prevention of
similar offenses, not atonement or expiation for
crimes committed, and the penalties and punish-
ments for the enforcement of which they are a means
to an end are not in the discretion or control of the
party accused, for no one has a right by his own
voluntary act to surrender his liberty or part with
his life ; the state, the public have an interest in the
preservation of the lives and liberties of its citizens,
and will not allow them to be taken away without due
process of law when forfeited, as they may be, as a
punishment for crime39. Therefore, the denial of
the right to waive the number of jurors provided by
law in felony cases arises from the fact that the
substantial constitution of the legal tribunal, and the
fundamental mode of its proceeding are not within
the power of the parties to modify or deal with in
other than the expressly provided manner40.
B. MISDEMEANOBS:— Sec. 398. In misde-
meanors, the courts seem very generally to adhere
to a doctrine contrary to that announced above as
governing the trial for felonies. And in this class
of cases the rule is that a defendant may, by his ex-
39. Canceml v. People. 18 N. Y. 128.
40. State v. MoClear. 11 Nev. 41.
Carpenter v. State. 4 How. 163 (Miss.) ; 34 A. D. 116.
Brazier v. State. 44 Ala. 387.
Territory v. Oritz. 8 N. Mex. 154; 42 Pac. 87.
Territory v. Ah Wah. 4 Mont. 149 ; 47 A. R. 341.
State v. Everett. 14 Minn. 447.
Work v. State. 2 Oh. St. 296 ; 59 A. D. 671.
People v. O'Neil. 48 Cal. 257.
State v. Meyers, 68 Mo. 266.
Hill v. People, 16 Mich. 351.
State v. Cox. 8 Ark. 436.
People v. Guidici. 100 N. Y. 503 : 3 N. E. 49Z.
CRIMINAL PRACTICE. 395
press consent, waive a jury of twelve and accept the
verdict of a less number, the reason being that the
right to a trial by jury of twelve was not in all such
cases fully guaranteed to him by the constitution, as
it did not exist as an absolute right at common
law41.
4. WAIVER OP PRIVILEGE FROM SELF-
CRIMINATION :— Sec. 399. Every person accused
of crime is protected by a constitutional privilege
from being compelled to give evidence against him-
self. Under this protection an accused cannot be
required against his will to testify in his own case.
But it is not a bar to his testifying if he desires.
And all courts agree, either by reason of statutory
provision or by construction of the privilege itself
that the right may be waived by the accused and
that such waiver occurs where he takes the stand
in his own behalf. The status of the accused is
thereby changed from that of a defendant to that
of a witness, and the same as any other witness, he
may be compelled to give evidence against himself
concerning all matters touched upon in his direct
examination.
Sec. 400. But the courts are far from harmo-
nious as to the extent such waiver operates. On the
one hand, it is said that if an accused testify, he is
at liberty to stop at any point he chooses, and it
must be left to the jury to give a statement which
he declines to make a full one, such weight as under
the circumstances they think it entitled to; other-
wise, the statute must have set aside and overruled
41. Darst v. People, 51 111. 286 ; 2 A. R. 301.
Commonwealth v. Dalley, 12 Cush. 80.
State v. Borowsky. 11 Nev. 119.
State v. Sackett. 39 Minn. 69; 38 N. W. 773.
Warwick v. State. 47 Ark. 568; 2 S. W. 335.
396 THE LAW OF WAIVER.
the constitutional maxim which protects an accused
party against being compelled to testify against him-
self, and the statutory privilege becomes a snare
and a danger42. Under this rule, when a defendant
takes the stand in his own behalf, he waives his
privilege as to those matters only concerning which
he testifies on direct examination, and his cross-ex-
amination must be limited to those matters referred
to in his examination-in-chief43.
Sec. 401. On the other hand, there is a rule
adopted by perhaps a majority of the states to the
effect that when an accused person takes the stand
in his own behalf, he thereby establishes a complete
waiver of his constitutional privilege of refusing
to give testimony against himself, and may on cross-
examination be asked any question pertinent to the
issue or calculated to test his accuracy, veracity or
credibility44. If this rule stopped here, it would not
42. Cooley's Constitutional Limitations, 384-6 (6th Ed.).
43. State v. Chamberlin, 89 Mo. 120 ; 1 S. W. 145.
State v. Saunders, 14 Oreg. 300 ; 12 Pac. 441.
State v. Underwood, 44 La. Ann. 852.
People v. Wong Ah Leong, 99 Cal. 440 ; 34 Pac. 105.
People v. Roemer, 114 Cal. 51 ; 45 Pac. 1003.
Mitchell v. State, 94 Ala. 68 ; 10 So. 518.
State v. Gallo, 18 Oreg. 425; 23 Pac. 264.
Howard v. Commonwealth, 22 Ky. L. R. 1845 ; 61 S. W. 756.
State v. O'Hara, 17 Wash. 525 ; 50 Pac. 477 ; 94 A. S. R. 864.
44. Spies v. People, 122 111. 1; 12 N. E. 865; 3 A. S. R. 320.
People v. Tice, 131 N. T. 651; 30 N. E. 494; 15 L. R. A. 669;
directly declaring the rule announced by Cooley to be out of
harmony with the authorities and unsound in principle.
State v. Callian, 109 La. 346; 33 So. 363.
Baker v. State, 58 Ark. 513 ; 25 S. W. 603.
Parker v. State, 136 Ind. 284; 35 N. W. 1105.
Com. v. Clark, 145 Mass. 251 ; 13 N. E. 888.
People v. Sutherland, 104 Mich. 468; 62 N. W. 566.
State v. Blitz, 171 Mo. 530; 71 S. W. 1027.
Com. v. Mozier, 135 Pa. St. 221; 19 Atl. 943.
People v. Larsen, 10 Utah 143 ; 37 Pac. 258.
Payne v. State, 40 Tex. Crim. 290; 50 S. W. 363.
State v. Cohn, 9 Nev. 179.
State r. Weaver, 35 Oreg. 415; 58 Pac. 109.
State v. Snyder, 8 Kans. App. 686; 57 Pac. 135.
CRIMINAL PRACTICE. 397
be as efficacious in dealing out justice to all parties
as the rule first announced. But there is a limitation
or qualification of the rule to this extent, that the
accused may, on cross-examination, be asked only
such questions as elicit matters pertinent to the issue
or such as may be proved by other witnesses45.
Sec. 402. We can see no reason for creating a
distinction between a defendant witness and any
other witness who is interested in the outcome of the
action. In the case of a party to a civil action who
takes the stand to testify, the same rules apply to
him that apply to any other witness, for his status
is changed from that of a party to that of a witness.
And the same rules should apply to an accused in a
criminal trial who testifies for himself, and he should
be entitled to the same privileges and subject to the
same treatment, and to be contradicted, discredited
and impeached the same as any other witness46.
5. EIGHT OF ACCUSED TO BE PRESENT
AT TRIAL :— Sec, 403. It is the right of every per-
son on the trial of a criminal charge against him to
be personally present at all times during the course
of his trial and during the rendition of verdict and
the passing of sentence ; and it is irregular to begin
his trial without his presence and erroneous to de-
prive him of the right without his consent.
A. CRIMES LESS THAN CAPITAL :— Sec.
404. While it has been held that in the trial for
crimes not capital the defendant is entitled to and
45. State v. Curtis, 39 Minn. 357; 40 N. W. 263.
Bailey v. State, 67 Miss. 333 ; 7 So. 348.
People v. Pinkerton, 79 Mich. 110 ; 44 N. W. 180.
State v. Wells, 54 Kans. 160 ; 37 Pac. 105.
State v. Clark, 100 la. 47 ; 69 N. W. 257.
State v. Pancoast, 5 N. Dak. 514 ; 67 N. W. 1052.
46. State v. Pfefferle, 36 Kans. 90 ; 12 Pac. 416.
398 THE LAW OF WAIVER.
must be present during the trial and rendition of
verdict, and that a verdict rendered in his absence
was void47, the better rule is that the right to be
present is one which the defendant cannot be de-
prived of without his consent, but that by his vol-
untary act he may waive the right and the verdict
will be valid48. The absence must be voluntary in
order to constitute a waiver of the right, although it
has been held that the accused cannot waive the right
whether his absence is voluntary or involuntary49.
"When a prisoner is so absent, it is usually due to
his own act, as where, during the progress of the
trial, he absconds; and it is the rule generally ad-
hered to that if the defendant flees the court while
his trial is pending, he waives his right to be present
during the remainder of the trial and is not entitled
to be discharged or have a new trial on account of
his absence50. It is said that while the constitution
guarantees him the right to be present, this guaranty
was never intended to include the right to abscond
and then complain of his own absence51.
*7. Sneed v. State, 5 Ark. 431 ; 41 A, D. 102.
Maurer v. People, 43 N. T. 1.
People v. Beauchamp, 49 Cal. 41.
M. 1 Bishop's New Crlm. Proc. Sec. 266.
State v. Guinness, 16 R. I. 401; 16 Atl. 910.
Barton v. State, 67 Ga. 655 ; 44 A. R. 743.
State v. Hope, 100 Mo. 347; 13 S. W. 490; 8 L. R. A. 608.
Gales v. State, 64 Miss. 105 ; 8 So. 167.
State v. Way, 76 Kans. 928; 93 Pac. 159; 14 L. R. A. (N. S.)
603.
Peterson v. State, 64 Neb. 875 ; 90 N. W. 964.
Hill v. State, 118 Ga. 21; 44 S. E. 820.
Btoddard v. State, 132 Wis. 520.
49. Summeralls v. State, 37 Fla. 162; 20 So. 242; 53 A. S. R. 247.
Clark v. State, 4 Humph. 254 (Tenn.)
•0. State v. Kelley, 97 N. Car. 404; 2 S. B. 185; 2 A. S. R.
299.
Com. v. McCarthy, 163 Mass. 458; 40 N. B. 766.
U. S. v. Laughery, 13 Blatchf. 267; 26 Fed. Cas. No. 15,631.
SI. Gore V. State. 52 Ark. 285; 12 S. W. 664; 5 L. R. A. 832.
CRIMINAL PRACTICE. 399
B. CAPITAL OFFENSES:— Sec. 405. The
rule among the authorities seems to be that in capital
offenses the accused not only has the right to be
present at all times during the course of his trial
when anything is said or done affecting him as to
the charge against him, and at the rendition of ver-
dict and passing of sentence, but that he must be
present, that he cannot waive the right, and that the
taking of any steps without his presence renders the
proceedings void52.
C. WHO MAY WAIVE THE EIGHT:— Sec.
406. Although there are apparent exceptions53, the
holding of the courts appears to be that the right of
an accused to be present during the progress of a
trial and the rendition of verdict and imposing of
sentence against him, is a right purely personal to
himself; one that cannot be taken from him except
by his consent, and one that no other person can
forego for him. Consequently, it is held that the
right cannot be waived by counsel for the prisoner54.
§2. State v. Kelley, 97 N. Car. 404; 2 S. B. 186; 2 A. S.
R. 299.
Sherrod v. State, (Miss.) ; 20 So. 554.
53. Wells v. State, 147 Ala. 140 ; 41 So. 630.
Cawthon v. State, 119 Ga. 395 ; 46 S. E. 897.
14. SPercer v. State, 118 Tenn. 765; 103 S. W. 780.
Green v. People, 3 Colo. 68.
Prlne v. Com., 18 Pa. St. 103.
Cook v. State, 60 Ala. 39 ; 31 A. R. 31.
400 THE LAW OF WAIVER.
CHAPTEE 16.
CIVIL PRACTICE.
SUBDIVISION 1.
Section
1. OBJECTIONS TO SPECIAL JUDGE 407
2. OBJECTIONS TO JURORS:
A. Panel 408
B. Poll 409
3. RIGHT TO JURY TRIAL 412
A. Number Of Jurors 414
4. WITNESSES:
A. Oath 416
B. Depositions 417
C. Competency 419
D. Self-crimination 420
(1) Time to claim privilege 422
(2) Privilege must be claimed 423
(3) Extent of waiver 424
SUBDIVISION 2.
TRIAL PRACTICE.
1. IN GENERAL 426
2. OBJECTIONS TO EVIDENCE:
A. Admission —
(1) Time to object 428
(2) Specifying evidence and ground of ob-
jection—
(a) In general 431
(b) Incompetency 433
(c) Incompetent, irrelevant and im-
material 434
(d) Exceptions to rule 438
(e) Objections abandoned 439
B. Variance 440
3. EXCEPTIONS TO RULINGS OF THE COURT:
A. In General 441
B. To Exclusion Of Evidence 443
C. To Admission Of Evidence 444
4. WAIVER AS TO NON-SUITS 447
5. DEMURRER TO THE EVIDENCE 452
«. DIRECTING VERDICT . ..455
CIVIL PRACTICE. 401
f. INSTRUCTIONS:
A. In General 456
B. Instructions Given 457
(1) Waiver of written instructions 459
(2) Exceptions 460
C. Instructions Refused 463
(1) Exceptions to refusal to instruct 465
D. Time For Exception 467
8. VERDICT 469'
9. FINDINGS OF FACT 470
10. NEW TRIAL. 471
11. WAIVER IN APPELLATE PRACTICE 473
A. Waiver Of Right To Appeal —
(1) From consent judgments 476
(2) By paying judgment 477
(3) By accepting benefits of judgment 479
B. Notice Of Appeal 482
1. OBJECTIONS TO SPECIAL JUDGE:—
Sec. 407. Many statutes make provision for the ap-
pointment of a special judge in the event of the
disqualification of the regular judge or of his in-
ability to act. Such special judge is one who takes
the place of the regular judge under a temporary
appointment for a particular purpose and derives
his power to act solely through statutory provision,
for there is no inherent power in courts or a judge
thereof to delegate such authority to another. If
there is no law authorizing or assuming to authorize
the appointment of a special judge, any attempted
appointment and any acts thereunder are void and
of no binding effect55. And it has been said that
even consent or agreement of parties to an action
55. Smith v. Haworth, 53 Mo. 88.
State v. Fritz, 27 La. Ann. 689.
Hoagland v. Creed, 81 111. 506.
402 THE LAW OF WAIVER.
cannot give validity to the acts of one assuming, un-
der such circumstances, the functions of a judge50.
Where there is an absolute absence of statutory au-
thority therefor, the record itself shows that the
person assuming to act was without authority to do
so, that his acts were invalid, and they may be taken
advantage of at any stage of the proceeding. But
where the record does not show upon its face objec-
tions to the judge so assuming to act, such objec-
tions must be made specifically by the party entitled
to do so. And the principle ramifying the whole
field of the law, that objections are to be made at
the first opportunity or are to be deemed waived, is
applicable here. Therefore, objections to the com-
petency of a special judge must be made with rea-
sonable promptitude or they will be held waived57.
The objections, it is said, must be made before
trial58, and this is true in a certain sense. But the
law does not attempt to require an impossibility; so
that a party, before he can be deprived of his right
to object, must have knowledge of that right and of
the grounds of the objection, or he must be so situ-
ated that by the exercise of reasonable care and
diligence he could have ascertained them.
2. OBJECTIONS TO JURORS :
A. PANEL:— Sec. 408. There are many de-
fects or irregularities in the formation of a jury
56. HylUs v. State, 4>5 Ark. 478.
Haverly Co. v. Howcutt, 6 Colo. 574.
But see: Radford Co. v. East Tenn. Co., 21 S. W. S29.
§7. Grant v. Holmes, 75 Mo. 109.
State v. Whitney, 7 Oreg. 386.
State v. Sachs, 3 Wash. 691 ; 29 Pac. 446.
Stears v. Wright, 51 N. H. 600.
State v. Voorhies, 41 La. Ann. 567; 6 So. 826.
Bowen v. Swander, 121 Ind. 164; 22 N. B. 726.
tt. Dolan v. Church, 1 Wyo. 187.
State v. Qreenwade, 72 Mo. 298.
CIVIL PRACTICE. 403
which will render their acts invalid, provided they
be taken advantage of at the proper time and in the
proper manner by him who is entitled to object.
The court will not protect a party in such case un-
less he assert his rights. So, if no objection be taken
to the empaneling of a jury, it is presumed that both
parties are satisfied with the panel chosen and the
manner in which they are chosen, and neither party
can be heard to object after the case has proceeded
on such presumption59. So, it is held that a chal-
lenge to the polls generally is a waiver of the right
to challenge the array60.
Sec. 409. The same presumption that attaches
to the regularity and sufficiency of the jury panel
applies when objection could be made to individual
jurors. Each party to an action has the right to
fully examine each juror offered as an arbiter of
his rights, and if either accepts the jury without
such examination his right to object is thereby
waived, and the qualifications of the jurymen are
presumed to be sufficient and satisfactory61. And
the challenge for all causes of disqualification of a
juror known to a party, or which by diligence and
reasonable care it is possible to learn, must be made
59. Queenan v. Territory, 11 Okla. 261 ; 71 Pac. 218 ; affirmed In 190
U. S. 548; 23 Sup. Ct. R. 762; 47 L. Ed. 1175.
Hardenburgh v. Crary, 15 How. Pr. 307.
60. Mueller v. Rebham, 94 111. 142.
Watkins v. Weaver, 10 Johns. 107 (N. T.)
See: Weeping Water Co. v. Haldeman, 35 Neb. 139; 52 N. W.
892.
«1. Tilton v. Kimball, 52 Me. 500.
Wassum v. Feeney, 121 Mass. 93.
Lane v. Scoville, 16 Kans. 402.
Faville v. Sheehan, 68 la, 241 ; 26 N. W. 131.
Daniels v. Lowell, 139 Mass. 56 ; 29 N. E. 222.
Manion v. Flynn, 39 Conn. 330.
Morrison v. McKinnon, 12 Fla. 552.
404 THE LAW OF WAIVER.
before trial and at the earliest opportunity02, or
otherwise the right of objection will be held waived.
Sec. 410. A divergence of opinion exists among
the authorities as to whether the disqualification of
a juror which is unknown to a party until after trial
and verdict is sufficient to entitle him to a new trial
when such disqualification is learned. It is said by
one line of authorities that in such case a new trial
should be granted63, and others say that a new trial
should be allowed only when the disqualification re-
lates to the legal competency of the juror and not to
mere bias or prejudice64. But if a juror has con-
cealed his prejudice or partiality or interest in the
cause, the verdict should be set aside upon a sub-
sequent discovery of the fact65. The true rule to be
applied in such cases, it seems to us, is that if a
party has used due diligence and care to ascertain
the competency of a juror and has been deceived or
has failed to discover the disqualifying facts, the
verdict should not be allowed to stand to his prej-
udice. A waiver of the grounds of objection could
not be held against him, for a party can waive no
right of which he is ignorant, and after he has
availed himself of all the means provided by law for
ascertaining the competency of a juror, he has done
all that could reasonably be expected of him.
Sec. 411. If a challenge for cause has been in-
terposed and overruled, it is held that an exception
to such ruling is waived if the party subsequently,
62. Johns v. Hodges, 60 Md. 215 ; 40 A. R. 722.
63. Lafayette Co. v. New Albany Co., 13 Ind. 90.
Hardy v. Sprowle, 32 Me. 310.
Williams v. McGrade, 18 Minn. 82.
Essex v. McPherson, 64 111. 349.
64. See: Wassum v. Feeney, 121 Mass. 93.
66. Jeffries v. Randall, 14 Mass. 205.
Childress v. Ford, 18 Miss. 25.
CIVIL PRACTICE. 405
cause the juror to be excluded under a peremptory
challenge66. And any error in such ruling is un-
doubtedly unavailing on appeal if the juror be ac-
cepted by the objecting party without having ex-
hausted all of his peremptory challenges67, but it is
otherwise if all of his peremptory challenges have
been exhausted and he is thus compelled to accept
the juror objected to68. But if a challenge to the
array has been overruled, an exception to such rul-
ing is not waived by subsequently challenging in-
dividual jurors69.
3. EIGHT TO JUBYTKIAL:— Sec. 412. The
right to have a jury try issues of fact is in many
cases guaranteed to parties by constitutional pro-
vision, and such right cannot be taken away except
by consent of the party entitled to it. And such
jury, unless otherwise provided or agreed upon,
must consist of twelve men. But the right to a jury
is personal to the parties and may be waived by
them, and such waiver may be either express or im-
plied70. And while it is true as a general proposi-
tion that a waiver of a jury once made is good for
all time71, yet it has been held that where a jury was
waived as to issues formed at the time of waiver, it
could not be extended so as to apply where different
66. Burt v. Panjand, 99 U. S. 180.
Elliott's App. Pr. Art. 649.
67. St. Louis Ry. Co. v. Lux, 63 I1L 623.
State v. Elliott, 45 la. 486.
68. Robinson v. Randall, 82 111. 521.
Hubbard v. Rutledge, 57 Miss. 7.
69. Clinton v. Englebrecht, 13 Wall. 434.
70. Love v. Bryson, 57 Ark. 589 ; 22 S. W. 341.
Carr v. Sullivan, 68 Hun 246.
Smith v. Barclay, 55 N. W. 827 (Minn.)
Bonewitz v. Bonewltz, 50 Oh. St. 373 ; 34 N. B. 332 ; 40 A. S. R.
671.
Petri v. Bank, 84 Tex. 212 ; 18 S. W. 762.
71. Marsh v. Brown, 57 N. H. 173.
406 THE LAW OP WAIVER.
issues were afterwards made on new pleadings72.
But even where a jury has been waived by the par-
ties, the waiver is not binding on the court and it
may call a jury73.
Sec. 413. Many statutes provide means in which
a jury may be waived, and the modes prescribed
must be followed74. But aside from such statutory
provision, a variety of conditions have been held suf-
ficient to constitute a waiver. Thus, submitting to
a reference will produce this result75 ; and where by
consent of counsel the case is set down for trial with-
out a jury and the trial actually begins, it is a waiver
of a jury trial76. And a defendant by not appear-
ing at the time a case is called for trial waives the
right to a trial by jury in his absence77. So, in a
mandamus proceeding to try title to a county office,
where the defendants submitted the evidence on
which they acted to the court, asking the court to
inspect the same, such constitutes a waiver of a jury
trial, assuming that a jury could be had in such a
case78. And in some instances the silence of a party
or his failure to demand a jury has been held a
waiver of his right to a jury trial79. Thus, a de-
fendant waives his right to a trial by jury where,
72. McGeah v. Nordberg, 65 N. W. 117 (Minn.)
73. Fleming v. Wilson, 39 Wash. 106; 80 Pac. 1104.
74. Swasey v. Adair, 88 Cal. 179 ; 25 Pac. 1119.
75. Lee v. Tillottson, 24 Wend. 337 ; 35 A. D. 624.
76. Polack v. Gurnee, 66 Cal. 266; 5 Pac. 229; 610.
77. Weems v. McDavitt, 49 Kans. 260 ; 30 Pac. 481.
Green v. Bulkley, 23 Kans. 131.
Even where he has before demanded a jury : McGuIre v. Drew,
83 Cal. 225 ; 23 Pac. 312.
78. Territory v. County Commsrs., 7 N. Mex. 56-8; 37 Pac. 1116.
79. Haley v. Bank, 21 Nev. 127 ; 26 Pac, 64 ; 12 L. R. A. 815.
Baird v. Mayor, 74 N. T. 382.
Sheets v. Bray, 125 Ind. 33 ; 24 N. E. 357.
Grant v. Hughes, 96 N. Car. 177 ; 2 S. E. 339.
Pearce v. Albright, 12 N. Mex. 202 ; 76 Pac. 286.
CIVIL PRACTICE. 407
after the withdrawal of the plaintiff's request for a
jury, and after the clerk has taken the case from the
list of cases for trial by jury and has placed it on
the waived-jury list, though without any special or-
der of court, he makes no complaint and no effort
to have the case re-transferred to the jury list until
the time when the case is actually reached for trial80.
And an agreement that the pending action shall
abide the result of another action constitutes a bind-
ing waiver of the right to try the pending action to
a jury81. The parties entered into an agreement to
relinquish their constitutional right to a jury trial.
It was held that such agreement was valid and bind-
ing and even broader than a simple waiver in that
it was a contract on a sufficient consideration to the
performance of which both could be held82.
A. NUMBER OF JURORS:— Sec. 414. The
early cases seem to have denied to parties to civil
actions the power to waive the right to a full jury
and to consent to a jury of fewer than twelve.
Thus, it was said that the common law right of trial
by a jury of twelve could not be waived either di-
rectly or indirectly, and if a trial by jury was de-
manded and refused, the right was not waived by
the subsequent trial by the court83. But this doc-
trine has long since been departed from, and it is
now almost universally held that the parties may
waive the right to trial by a jury of twelve or any
other number that may be provided by law84. But
80. Stevens v. McDonald, 173 Mass. 382; 53 N. E. 885; 73 A. 8.
R. 300.
81. Cuiran'ings v. Smith, 50 Me. 568 ; 79 A. D. 629.
82. Lanahan v. Heaver, 77 Md. 605 ; 26 Atl. 866 ; 20 L. R. A. 769.
83. Norval v. Rice, 2 Wls. 22, followed in:
May v. Milwaukee Co., 3 Wls. 219.
84. Scott v. Russell, 39 Mo. 407.
Marlin v. Stockbridge, 14 Tex. 165.
408 THE LAW OF WAIVER.
the parties are absolutely entitled to have their
cause tried by the full number and nothing short of
their consent can deprive them of this right85 ; and
it is said that the consent must be recorded or the
judgment will be set aside86. And a waiver cannot
be inferred merely from the absence of the adverse
party, although his absence is considered a consent
that the case be tried to the court87. So, during the
progress of the trial the court has no right to with-
draw one of the jurors and proceed with those re-
maining, without the consent of the parties88, but
it is held a waiver where the parties consent to the
withdrawal89.
Sec. 415. However, even though the record fail
to show a submission by consent of parties to a jury
of eleven, still the right to a full jury may be waived
by failure to assign the matter complained of as
grounds for a new trial90. And where the objection
is first made upon appeal, it is conclusively pre-
sumed that the parties waived their right to the
full number of jurors91. But aside from technical
considerations, the right to a full number of jurors
is an individual right within individual control and
may be parted with at pleasure, and an irrevocable
waiver of the right occurs where a party consents
to a trial by a fewer number than that regularly
provided for92. Yet in the absence of such waiver,
85. Bishop v. Mugler, 33 Kans. 146 ; 5 Pac. 756.
Van Sickle v. Kellogg, 19 Mich. 49.
86. Brown v. Hannibal Co., 37 Mo. 298.
87. Gillesple v. Benson, 18 Cal. 409.
88. Cloud Co. Com. v. Morgan, 7 Kans. App. 213 ; 52 Pac. 896.
89. Tram Lbr. Co. v. Hancock, 70 Tex. 312 ; 7 S. W. 724.
90. Mitchell v. Stevens, 23 Ind. 466.
91. Martin v. Stockridge, 14 Tex. 165.
92. Clague v. Hodgson, 16 Minn. 329.
Roach v. Blakey, 89 Va. 767; 17 S. E. 228.
City of Huron v. Carter, 5 S. Dak. 4 ; 57 N. W. 947.
Rhode* v. Mattox, 135 Ind. 372; 34 N. E. 326; 35 N. E. 11.
CIVIL PRACTICE. 409
a defendant is not to be held responsible for the
right construction of the jury in point of numbers,
nor for the fault of the proper officers in that re-
spect93.
4. WITNESSES—
A. OATH: — Sec. 416. It is required by law
and by rules of practice that a witness shall first be
sworn to tell the truth, the whole truth and nothing
but the truth before he can be interrogated concern-
ing the matters at issue in the pending case. It is
the duty of the party calling a witness to see that
this formality of qualifying the witness is gone
through with. But a failure in this respect is not
necessarily fatal to any rights involved in the ac-
tion, for if the opposite party permit the witness to
proceed with his testimony without raising objec-
tion when he could have done so, the irregularity
will be waived and the testimony allowed to stand
as if the oath had been duly administered94. And
it is equally true that if a party examine a witness
knowing that the latter has not been sworn, yet
make no objection on that account, the failure in ad-
ministering the oath is waived; for the party must
object at the earliest possible moment. And this
rule applies whether the witness be present testify-
ing in court or his testimony be taken by deposi-
tion. And where parties taking a deposition failed
to carry out a stipulation as to the swearing of a
witness in a manner not required by law, it was
held not to be ground for suppressing the deposi-
tion95.
93. Cowles v. Buckman, 6 la. 161.
94. Trammell Co. v. Mount, 68 Tex. 210; 4 S. W. 377; 2 A. S.
R. 479.
95. Knapp v. Am. Shoe Co., 63 Kans. 698; 66 Pac. 996.
410 THE LAW OF WAIVER.
B. DEPOSITIONS:— Sec. 417. Statutes dif-
fering in minutia as to the taking of depositions of
witnesses exist in the various states, and in the es-
sential requirements these statutes are similar.
Every deposition must be taken upon some sort of
notice to the opposite party, and unless such notice
be given, the deposition may be suppressed upon
proper application. But after defective or insuffi-
cient notice, a party waives the defects by appear-
ing and participating in the taking of the deposi-
tion96. And if he files cross-interrogatories and
participates in the taking of the deposition, he
waives any objection to the commission under which
it was taken97. As a general proposition, appearing
and taking part in the examination of the witness
is a waiver of all formal objections that might be
remedied by amendment or re-taking of the deposi-
tion98. Thus, preliminary proof that the witness
resided out of the county where the cause was be-
ing tried was held waived where the party against
whom the deposition was taken expressed himself
as satisfied with a statement from opposing counsel
as to the non-residence of the witness00. And an
objection that the certificate does not show that the
deposition was taken before the one to whom the
commission was issued, nor in the official capacity
designated therein, is waived unless taken by mo-
96. Kelly v. Ning Tung Co., 2 Cal. App. 460 ; 84 Pac. 821.
97. Palatine Ins. Co. v. Merc. Co., 13 New Mex. 241; 82 Pac.
363.
98. Shutte v. Thompson, 15 Wall. 151.
Waldron v. St. Paul. 33 Minn. 87 ; 22 N. W. 4.
Quadras v. Webster, 11 La. Ann. 203.
.Goodfellow v.. Landis, 36 Mo. 168.
Jones v. Love, 9 Cal. 68.
Hobart v. Jones, 5 Wash. 385; 31 Pac. 878.
99. Estate of Learned, 70 Cal. 140 ; 11 Pac. 587.
CIVIL PRACTICE. 411
tion to suppress made prior to trial100. And if a
motion to suppress be made, but no ruling thereon
had, it will be presumed that the objection was
waived1.
Sec. 418. It is the further general rule that ob-
jections to the manner and form of taking a depo-
sition must be made at the time it is taken or they
will be held waived. Such objections cannot be
made for the first time at the trial2. And it is the
same if objection be made to improper questions3.
But objections going to the competency and rele-
vancy of the evidence, if not known and not dis-
closed by the deposition, may generally be made at
the trial4.
C. COMPETENCY:— Sec. 419. Sometimes it
appears before the examination-in-chief that a wit-
ness is incompetent to testify in the particular case.
In such event the party entitled to object to such
witness must make his objection promptly or he will
be deemed to have waived it ; for in this connection,
as in all other cases, it is the rule that an objection
100. Sugar Pine Co. v. Garrett, 28 Oreg. 168 ; 42 Pac. 129.
Murray v. Larabie, 8 Mont. 208 ; 19 Pac. 574.
1. Garvin v. Luttrell, 10 Humph. 16 (Tenn.)
Faut v. Miller, 17 Gratt. 187 (Va.)
Hanks v. Van Garder, 59 la. 179 ; 13 N. W. 103.
McGinnis v. Gabe, 78 Ind. 457.
2. Oliver v. Oregon Sugar Co., 45 Oreg. 77; 76 Pac. 1086.
Inter-Nat. Ry. Co. v. Prince, 77 Tex. 560 ; 19 A. S. R. 795.
Bent Otero Co. v. Whitehead, 25 Colo. 354 ; 54 Pac. 1023 ; Tl
A. S. R. 140.
Holman v. Bachus, 73 Mo. 49.
Uhle v. Burnham, 44 Fed. 729.
Akers v. Demon d, 103 Mass. 318.
Bell v. Jamison, 102 Mo. 71 ; 14 S. W. 714.
3. Ala. Nat. Bank v. Rivers, 116 Ala. 1; 22 So. 580; 67 A. S, R.
95.
4. Leavitt v. Baker, 82 Me. 26 ; 19 Atl. 86.
Myers v. Murphy, 60 Md. 282.
Tays v. Carr. 37 Kans. 141 : 14 Pac. 456.
412 THE LAW OF WAIVER.
should be made at the first opportunity, a ruling ob-
tained, and an exception properly saved, or the pro-
ceedings will conclusively be presumed to have been
satisfactory to all parties5. But it perhaps more
frequently occurs that the incompetency of the wit-
ness does not become apparent until after his ex-
amination has been proceeded with. In cases of
this kind, of course a party cannot object until he
knows of his right to do so, but when it comes to his
knowledge he must act promptly in presenting his
objections or he will be held to have foregone his
right to question the competency of the witness6.
A party calling a witness in support of his own case
cannot object to his competency7, and it is said,
also, that he waives the right to object to the credi-
bility of the witness8. Such waiver, once made, is
good for the entire trial and cannot be revoked9.
But a party is only required to make his objection
at the proper time and to save an exception to the
court's ruling. His right to later insist upon the
objection is not waived by proceeding with the
cross-examination of the witness nor by introducing
evidence to contradict the testimony10.
D. SELF-CRIMINATION:— Sec. 420. The
federal constitution and the constitutions of most
of the states provide that no person can be com-
5. See: Lewis v. Morse, 20 Conn. 211.
Groshom v. Thomas, 20 Md. 234.
Patterson v. Wallace, 44 Pa. St. 88.
Stuart v. Lake, 33 Me. 87.
Weidenhoft v. Prim. 16 Wyo. 340; 94 Pac. 458.
6. Seip v. Torch, 52 Pa. St. 210.
Stockton v. Demuth, 7 Watts 39 ; 32 A. D. 735.
T. Stockton v. Demuth, supra.
8. Mattloe v. Allen, 33 Barb. 546.
9. Beall v. Lynn, 6 Harr. & Johns. 336 (Md.)
10. Boylan v. Meeker, 4 Dutch. 274 (N. J.)
Carpenter v. Glnder, 1 Wis. 243
CIVIL PRACTICE. 413
pelled, as a witness, to answer any question if the
answer would tend to expose Mm to a criminal
charge or any kind of punishment. It may be noted
that the answer may be refused if it would tend to
expose the witness to a criminal prosecution, the
rule not being confined to matters which directly
incriminate him. And a court ought never to com-
pel a witness to give an answer which discloses a
fact that would form a necessary and essential part
of a crime which is punishable by law11. Whether
the privilege extends to protecting a witness from
answers that would disgrace him is a matter upon
which there is still some divergence of opinion. But
the weight of authority is that if the answer would
have a tendency to disgrace him, and the proposed
testimony be of materiality to the case, he may be
required to answer, but that he may invoke the ben-
efit of the privilege if the answer can have no effect
on the case12. And we think the holding of most
courts is to the same effect where the answer not
only has a tendency, but is sure to disgrace the wit-
ness13; although an opposite rule is adhered to by
some courts14.
Sec. 421. But the question what the witness is
privileged from, what will criminate him, who de-
termines the character of the answer, and questions
of like character are not matters which we are to
discuss extensively. It is our purpose to consider
the ways and instances in which a witness by his
11. 1 Burr's Trial, 244, per Chief Justice Marshall.
Counselman v. Hitchcock, 142 U. S. 547.
12. Brown v. Walker, 161 U. S. 591 ; and 70 Fed. 46.
13. Jennings v. Prentice, 39 Mich. 421.
People v. Rector, 19 Wend. 569.
Nioline Co. v. Preston, 39 111. App. 358.
14. U. S. v. James, 60 Fed. 257.
414 THE LAW OF WAIVER.
own conduct deprives himself of the protection af-
forded by the privilege. And to begin with, it is
well to note that this privilege of refusing to an-
swer questions of a nature incriminating is one that
is merely personal to the witness and he alone can
claim its protection. The rules regulating the
waiver of this privilege are the same whether the
witness be testifying in a civil action or in a crim-
inal prosecution, except as to the defendant him-
self in the latter case.
(1) TIME TO CLAIM PEIVILEGE :— Sec.
422. Though there is some conflict of authority,
the better doctrine is that a witness must claim the
privilege of his exemption from answering at the
threshold of the examination; it being said that he
cannot wait and answer a part and then refuse to
answer other questions legitimate to a cross-exam-
ination. If he voluntarily states a part of the
testimony, he waives his right and cannot later
stand on his privilege15. And while there is author-
ity supporting the doctrine that a witness may in
his direct examination stop at any point he may see
fit and claim his privilege, after which he cannot
be cross-examined touching any point not men-
tioned in the direct examination16, still, whether or
not it contravenes the general rules regulating
cross-examinations, the trend and holding of mod-
ern authorities support the rule that a witness who,
IS. Ex Parte, Park, 37 Tex. Cr. R. 590; 66 A. S. R. 835, citing:
Rapalje, Witnesses, Sec. 269.
Wharton's Grim. Evidence, Sec. 470.
State v. Blake, 25 Me. 350.
Com. v. Price, 10 Gray 472; 71 A. D. 668.
People v. Freshour, 55 Cal. 375.
Connors v. People. 50 N. Y. 240.
State v. K., 4 N. H. 562.
1«. Cooley's Const. Llm. 6th Ed. 384.
CIVIL PRACTICE. 415
in his direct examination, voluntarily, or without
objection opens up an account of a transaction, will,
on cross-examination, be compelled to complete the
narrative; and that he will not be allowed to state
a fact and afterwards refuse to give the details17.
In fact, the time in which this privilege may be
claimed is one of the distinguishing rights between
an ordinary witness and a defendant in a criminal
prosecution who takes the stand in his own behalf;
for the former may testify in the case and then re-
fuse to answer an incriminating question at the
time it is asked, but the latter, by the mere fact of
taking the stand, produces a complete waiver of the
privilege so far as it relates to facts relevant to the
case18.
(2) PBIVILEGE MUST BE CLAIMED :-
Sec. 423. The protection afforded by the privilege
extended to witnesses to refuse to answer questions
of an incriminating character is not self-operative.
It is not a matter that concerns any but the witness
himself, or, in other words, it is entirely personal
to him. If he would avail himself of its benefits,
he must claim them properly, for the rule is general
that unless he claim the privilege in time he will be
17. Rapalje on Law of Witnesses, Sec. 443.
Chamberlain v. Willson, 12 Vt. 491.
Alderman v. People, 4 Mich. 414.
State v. Nichols, 29 Minn. 357; 13 N. W. 153.
Este v. Wilshire, 44 Oh. St. 636 ; 10 N. E. 677.
Com. v. Pratt, 126 Mass. 462.
18. State v. Kent, 5 N. Dak. 516; 67 N. W. 1052.
Coburn v. O'Dell, 30 N. H. 540.
State v. Duncan, 7 Wash. 336; 35 Pac. 117; 38 A. S. R. 888.
State v. Murphy, 45 La. Ann. 958 ; 13 So. 229.
State v. Clinton, 67 Mo. 380 ; 29 A. R. 506.
State v. Allen, 107 N. Car. 805 ; 11 S. E. 1016.
State v. Fay, 43 la. 651.
Tbomas v. State, 103 Ind. 419 ; 2 N. E. 808.
416 THE LAW OF WAIVER.
deemed to have waived it and exposed himself to a
complete examination and cross-examination con-
cerning the criminating matters. And while the
privilege is one wholly personal to the witness, and
one with which neither party has anything to do, it
has been said that the rnle does not require that the
witness should in person address the court and
claim the privilege19, and that if the court under-
stands that the witness claims the privilege, it is
immaterial whether the claim be made in person or
by counsel20. But the better rule is adverse to these
holdings and supported by most authorities, and
under it the witness must claim his privilege in
person and must state under oath that the answer
to the proposed question will tend to incriminate
him21. The reason for the last-named rule is that
if the witness is not required to personally claim
the privilege under oath, there is no admission
which tends to discredit him, and the real benefit
to be derived by the party examining him from
such a discrediting admission is very largely lost.
(3) EXTENT OF WAIVER:— Sec. 424.
Some question has arisen as to how far the waiver
by a witness of the privilege of refusing to testify
shall be effective. It seems well settled that where
a witness is connected with several distinct trans-
is. People v. Brown, 72 N. T. B71 ; 28 A, R. 183, a case of a defend-
ant as a witness for himself.
20. Clifton v. Granger, 86 la. 573 ; 53 N. W. 316.
21. Wharton, Evidence, Sec. 535.
State v. Kent, 5 N. I>ak. 516 ; 67 N. W. 1052.
Roddy v. Flnnegan, 43 Md. 490.
White v. State, 52 Miss. 216.
People v. Relnhart, 39 Cal. 449.
State v. Wentworth, 65 Me. 234; 20 A. R. 688.
State v. Butler, 47 S. Car. 25 ; 24 S. E. 991.
Bradford v. People, 22 Colo. 157; 43 Pac. 1018.
Burk v. Putnam, 113 la. 232; 84 N. W. 1053; 86 A. S. R. 37*.
CIVIL PRACTICE. 417
actions which tend to incriminate him, all of which
are material to the issues in the case, he does not
waive his privilege of refusing to testify as to some
of the incriminating transaction by consenting to
testify as to others. But he waives his privilege as
to such transaction in so far as the inquiry as to
them is within the proper limits of cross-examina-
tion22. A specific exemplification of the rule is
found in a case where a witness in his deposition
testified in chief to the execution of certain notes,
and it was held that he did not thereby waive his
privilege of refusing to answer on cross-examina-
tion whether the notes were respectively in the
same condition at the time he was testifying as they
were when signed and delivered, and it was held
error in such case to strike out the deposition on
the ground that the witness had by so answering
in chief waived his privilege23.
Sec. 425. There is authority for the proposi-
tion that if a witness voluntarily and freely testify
before a grand jury, that he waives his privilege
and may be required to testify fully at the trial24.
But the rule is not well supported either by author-
ity or reason ; for the grand jury investigations are
entirely separate and disconnected and have noth-
ing to do with the court as far as the witness is
concerned, since his testimony could not be consid-
ered as a continuous statement25. And the same is
22. Evans v. O'Connor, 174 Mass. 287; 54 N. E. 557; 75 A. S. R
316.
Low v. Mitchell, 18 Me. 372.
28. Lombard v. Mayberry, 24 Neb. 674; 40 N. W. 271 ; 8 A. S. R.
234.
24. fitate v. Van Winkle, 80 la. 15 ; 45 N. W. 388.
26. Temple v. Commonwealth, 75 Va. 892.
People v. Lauder, 82 Mich. 109; 46 N. W. 958.
418 THE LAW OF WAIVER.
true if he first testify at a coroner's inquest26, or
if he waives his privilege at one trial and claims it
at a second trial of the same case27.
SUB-DIVISION 2.
TRIAL PRACTICE.
1. IN GENERAL:— Sec. 426. In the trial of
all cases before courts of justice, either with or
without the intervention of a jury, it is necessary,
in order for a party to have errors alleged by him
to have been committed by the trial court reviewed
on appeal, that he should have objected to the mat-
ter alleged as error and excepted to the ruling of
the court. The objection is the presentment of a
point upon which a ruling is asked, and the excep-
tion is an objection registered against the ruling of
the court. Without an exception, the objection is
unavailing in the appellate court. And as the two
are so closely related in their functions, and as the
rules governing them apply whether the trial be of
a civil or criminal action, the treatment of the two
in the succeeding sections will necessarily be inter-
woven.
Sec. 427. It is elementary that the point to
which a party may wish to object must be raised at
the trial or in the proceedings in the court below, or
it cannot be taken advantage of in the appellate
court28. Or, otherwise said in one instance, if the
26. Cullen v. Commonwealth, 24 Gratt. (Va.) 624.
27. Emery v. State, 101 Wls. 627 ; 78 N. W. 145.
Georgia Ry. Co. v. Lybrend, 99 Ga. 421; 27 S. E. 794.
28. Hershey v. Institute, 15 Ark. 128.
Spear v. Lomax, 42 Ala. 576.
New Orleans v. Congregation, 15 La. Ann. 389.
Scully v. Book, 3 Wash. 182; 28 Pac. 556.
Dimmey v. Wheeling Ry. Co., 27 W. Va. 32 ; 35 A. R. 292.
Bunks v. Chapman, 11 Ky. L. R. 260.
Benepe v. Wash, 38 Kans. 407; 16 Pac. 950.
Laber v. Cooper, 7 Wall. 565 ; 19 L. Ed. 151.
CIVIL PRACTICE. 419
objection be to the introduction of evidence, the
proper time to object is when it becomes apparent
that error will be committed by receiving the evi-
dence, as when it is offered29, or, when a question is
asked which is improper or calls for an improper
answer30 ; and that an exception must be taken at
the time to the ruling of the court31. Some states
have statutory provisions regulating the mode and
time of making objections and taking exceptions,
but the rules are practically the same as in those
states where no statutory provision exists. And
the same principles obtain whatever be the matter
objected to, the rule being that a party must avail
himself of his rights at the earliest opportunity or
they will be deemed waived.
2. OBJECTIONS TO EVIDENCE:
A. ADMISSION-
(1) TIME TO OBJECT:— Sec. 428. It is a
rule of universal application, embracing practically
every conceivable objection that could be made to
evidence, that, in order to obtain any advantage of
an error committed by the trial court, an objection
must be made at the time the evidence is offered or
it will be held waived ; in support of which rule, the
29. Perrot v. Shearer, 17 Mich. 48.
Sharon v. Minneck, 6 Nev. 377.
McKay v. Lane, 5 Fla. 268.
Crump v. Starke, 23 Ark. 131.
Shain v. Sullivan, 106 Cal. 208 ; 39 Pac. 606.
Thomson v. Wilson, 26 la. 120.
30. Storms v. Lemon, 7 Ind. App. 435 ; 34 N. E. 644.
Blake v. Broughton, 107 N. Car. 220; 12 S. E. 127.
Duer v. Allen, 96 la. 36 ; 64 N. W. 682.
31. Laird v. Upton, 8 N. Mex. 409 ; 45 Pac. 1010.
Lester v. Georgia Co., 90 Ga. 802 ; 17 S. E. 113.
Missouri v. Hope, 100 Mo. 347; 13 S. W. 490; 8 L. R. A. 608.
Hanna v. Maas, 122 U. S. 24 ; 7 Sup. Ct. R. 1055 ; 30 L. Ed.
1117.
Williams v. Thomas, 3 N. M.-326; 9 Pac. 356.
420 THE LAW OF WAIVER.
adjudicated cases are numerically like unto the sands
of the sea. And the reason upon which the rule is
based is that if the alleged error be called to the
attention of the trial court, an opportunity will thus
be given for its correction, the expense of an appeal,
and perhaps the annoyance of a second trial averted.
Therefore, the objection will be too late if made for
the first time after the cause has gone to the jury32,
or after argument33, or after verdict84, or on a mo-
tion for a new trial35, or on appeal36, and in either
of such cases it is deemed waivecl.
Sec. 429. Thus, if parol evidence be offered in
lieu of that required by law to be in writing, the er-
ror in the admission of such evidence is waived un-
less objected to at the time of the offer37. And the
same result follows where the evidence introduced
is secondary38, or documentary with defects as to
form which would render it inadmissible39, or parol
introduced to vary the terms of a written instru-
32. Hummel v. State, 17 Oh. St. 628.
38. Farmers Bank v. Greene, 43 U. S. App. 446 ; 74 Fed. 439 ; 20 C.
C. A. 500.
34. Arons v. Smlt, 173 Pa. St. 630; 34 Atl. 234.
Crump v. Starke, 23 Ark. 131.
Barton v. Gray, 57 Mich. 622 ; 24 N. W. 638.
35. Cook v. L/igon, 54 Miss. 368.
Feidler v. Motz, 42 Kana 519; 22 Pac. 561.
State v. Peak, 85 Mo. 190.
Holten v. Lake Co., 55 Ind. 194.
36. West. Union v. Powell, 94 Va. 268; 26 S. E. 828.
Vietti v. Nesbitt, 22 Nev. 390 ; 41 Pac. 151.
Coleman v. Davis, 13 Colo. 98 ; 21 Pac. 1018.
McLaughlin v. Wheeler, 1 S. Dak. 197 ; 47 N. W. 816.
Dunham v. Holloway, 3 Okla. 244 ; 41 Pac. 140.
Illstad v. Anderson, 2 N. Dak. 167 ; 49 N. W. 659.
Button v. Snokomish, 11 Wash. 24 ; 39 Pac. 273.
Paine v. Trask, 5 U. S. App. 283 ; 56 Fed. 233 ; 5 C. C. A.
497.
87. Brown v. Barnwell Co., 46 S. Car. 415 ; 24 S. B. 191.
keeper v. Paschal, 70 Mo. App. 117.
38. West. Union v. Cline, 8 Ind. App. 364 ; 35 N. E. 564.
39. Western v. Flanagan, 120 Mo. 61 ; 26 S. W. 531.
Wells Fargo v. Davis, 105 N. T. 670; 12 N. E. 42.
CIVIL PRACTICE. 421
merit40, or if a written instrument be introduced
without proof of the signatures of the parties bound
thereon41, or if the evidence given be entirely out-
side of the issues raised by the pleadings42, or be
subject to the objection that the proof is a variance
from the pleadings43, or if proper preliminary proof
has not been made44.
Sec. 430. But it has been held that the objection
that evidence incompetent has been admitted is not
waived by neglect to make it when the evidence was
introduced, and that it may be made at any time45.
The ruling, however, is contrary to an almost un-
broken line of authority which holds to the proposi-
tion dictated by reason, that a party should not be
allowed to take his chances on incompetent evi-
dence's being favorable to him and when it runs
against him to have his belated objection given rec-
ognition46. But the law never requires of a party
40. Tebbs v. Weatherwax, 23 Cal. 58.
41. Perrott v. Shearer, 17 Mich. 48.
Knoll v. Kiessling, 23 Oreg. 8 ; 35 Pac. 248.
McKay v. Lane, 5 Fla. 268.
42. Boston Co. v. O'Reilly, 158 U. S. 334; 15 Sup. Ct. R. 830; 39
L. Ed. 1006.
Blanchard v. Cook, 147 Mass. 215; 17 N. E. 313.
Brady v. Nally, 151 N. Y. 258 ; 45 N. E. 547.
43. Colo. Inv. Co. v. Rees, 21 Colo. 435 ; 42 Pac. 42.
Stockton, etc. v. Glens Palls Co., 121 Cal. 167 ; 53 Pac. 565.
Bertha Co. v. Martin, 93 Va. 791 ; 22 S. E. 869.
44. Cox v. Gerkin, 38 111. App. 340.
45. Day v. Crawford, 13 Ga. 508. (See later cases same state below).
46. Maxwell v. Hannibal Ry., 85 Mo. 95.
O'Connell v. Hotel Co., 90 Cal. 515 ; 27 Pac. 373.
McCoy v. Wilson, 8 Colo. 335.
Jackson v. State, 88 Ga. 784 ; 15 S. E. 677.
Kinney v. Ry. Co., 34 N. J. L. 517.
De Garca v. Galvan, 55 Tex. 53.
Briesenmeister v. Lodge, 81 Mich. 525 ; 45 N. W. 977.
Pokrok Co. v. Zizkovsky, 42 Neb. 64 ; 60 N. W. 358.
Zabel v. Nyenhuis, 83 la. 756; 49 N. W. 999.
Murray v. Ry. Co., 3 N. Mex. 337 ; 9 Pac. 369.
422 THE LAW OF WAIVEB.
that he do an unreasonable or an impossible thing,
and if at the time evidence is offered or introduced
a party against whom it operates is unaware of its
inadmissibility and could not with reasonable dili-
gence ascertain it, he will be permitted to object at
the first opportunity offered after discovery of its
inadmissibility, which objection should be in the
form of a motion to strike out47. And it has been
said, as a qualification of the general rule, that if
the objectionable features of evidence could not un-
der any circumstances have been obviated in the
court below, objection may for the first time be made
in the appellate court48.
(2) SPECIFYING EVIDENCE AND GKOUND
OF OBJECTION-
(a) IN GENERAL:— Sec. 431. Objections to
the introduction of evidence must not only be made
at the proper time, but they must present to the
court the substance of the complaint showing the in-
admissibility of the offered evidence, so that the
court may be fully advised of the claims of either
party and thus be better able to avoid error in rul-
ing. The objection must embrace all the reason the
complaining party desires to urge for excluding the
evidence, for it is the general rule, subject to a few
exceptions, that if an objection specify particular
reasons for excluding evidence, it will be considered
only upon those grounds and all others will be
47. Sharon v. Nimrock, 6 Nev. 378.
Dyson v. Baker, 54 Miss. 24.
48. People v. Tee Funk Din, 106 Cal. 163 ; 39 Pac. 530.
Hough ton v. Jones, 1 Wall. 702 (U. S.)
CIVIL PRACTICE. 423
treated as waived49. A contrary rule would create
confusion in the trial of cases. For, as has been said,
if parties were not required to specify the grounds
of their objections, such confusion might arise that
many cases would practically never end. "The ef-
fect of it would be to compel one party to fight in
the dark, not knowing when his opponent intended
to strike, while the other would be free to choose his
weapons and the time and place to use them. Such
things may do in love or war, when all things are
said to be fair, but life is too short to transact busi-
ness on such a system in courts of justice."50. If
the party objecting will not specify the particulars
rendering the evidence inadmissible, the court is not
bound to speculate as to what counsel might have
intended, for, unlike darkness, a general objection
will not cover a multitude of errors51.
49. Washington v. State, 106 Ala. 58; 17 So. 546.
Walker v. State, 97 Ga. 197 ; 22 S. E. 401.
Bell v. Sheridan, 21 D. C. 370.
Little v. People, 157 111. 153 ; 42 S. E. 389.
Davis v. Hopkins, 18 Colo. 153; 32 Pac. 70.
Morris v. Henderson, 37 Miss. 492.
Sullivan v. Richardson, 33 Fla. 1 ; 14 So. 692.
Bailey v. Ry. Co., 3 S. Dak. 531; 54 N. W. 696 ; 19 L. R. A.
653.
Evanston v. Gunn, 99 U. S. 660 ; 25 L,. Ed. 306.
Violet v. Rose, 39 Neb. 660; 58 N. W. 216.
Rosina v. Trowbridge, 20 Nev. 105 ; 17 Pac. 751.
Burnside v. Ry. Co., 47 N. H. 554.
Crane v. State, 94 Tenn. 86; 28 S. W. 317.
Bournan v. Eppinger, 1 N. Dak. 21; 44 N. W. 1000.
50. Rush v. French, 1 Ariz. 123 ; 25 Pac. 816.
51. Heasllt v. Stratlin, 54 Ark. 185 ; 15 S. W. 461.
Alexander v. Thompson, 42 Minn. 498; 44 N. W. 534.
Howard v. Howard, 52 Kans. 469 ; 34 Pac. 1114.
States v. Chambers, 87 la. 1 ; 53 N. W. 1090.
Chandler v. Beal, 132 Ind. 596 ; 32 N. W. 597.
Davis v. Mills, 163 Mass. 481 ; 40 N. E. 852.
Holmes v. Roper, 141 N. T. 64 : 36 N. E. 180.
Fidler v. Hershey, 90 Pa. St. 363.
Arnold v. State, 5 Wyo. 439 ; 40 Pac. 967.
Turnbull v. Richardson, 69 Mich. 400; 37 N. W. 499.
424 THE LAW OF WAIVER.
Sec. 432. A general objection in the trial court
will not permit the urging of a special ground in the
appellate court, nor can a new ground be substituted
in the higher court for the one presented below52.
And a general objection will be ineffective for any
purpose if a part of the evidence be admissible even
though the other part be inadmissible53. It is im-
material for what purpose the evidence is admis-
sible54, although it has been held differently where
the evidence had no bearing whatever on the is-
sues55. But the exceptions to the rule are not many,
for it is founded in reason, and in consonance with
good sense requires a party objecting to specify the
matters of which he complains and not to say, as
counsel in one case did, that the objection is on "all
grounds ever known or heard of"56. For as much
as any other purpose, the objection is to give notice
to the opposing party of the error in order that he
may correct it— if it is objected that the question is
leading, that the form may be changed; if that the
evidence is irrelevant, the relevancy may be shown ;
if that it is incompetent, that the incompetency may
be removed; if that it is immaterial, that the ma-
teriality may be established; if to the order of in-
troduction, it may be withdrawn and offered at
another time57.
52. Wllley v. Portsmouth, 64 N. H. 219; 9 Atl. 220.
Bright v. Ecker, 9 S. Dak. 449 ; 69 N. W. 824.
53. Mllligan v. Furniture Co., Ill Mioh. 629 ; 70 N. W. 133.
54. Stringer v. Frost, 116 Ind. 447; 19 N. E. 331; 9 A. S. R. 875; 2
L. B. A. 614.
Three States Co. v. Rogers, 145 Mo. 445 ; 46 S. W. 1079.
55. First Nat. Bank v. Carson, 30 Neb. 104 ; 46 N. W. 276.
56. Johnston v. Clements, 25 Kans. 376.
67. Rush v. French, 1 Ariz. 124 ; 25 Pac. 816.
See, also: Helena v. Albertose, 8 Mont. 449; 20 Pac. 817.
Johnson v. Okerstrom, 70 Minn. 303 ; 73 N. W. 147.
Smith v. Hanie, 74 Ga. 324.
Masonic Soo. v. Lackland, 97 Mo. 137; 10 S. W. 895.
CIVIL PRACTICE. 425
(b) INCOMPETENCY:— Sec. 433. However
far the objection that evidence is incompetent may
be effective, it is well settled that it cannot cover
any other grounds for the exclusion of the evidence
objected to, and, therefore, such other grounds will
be considered waived. Thus, such objection will not
raise the question of the competency of the witness
to testify58, nor that parol evidence was admitted
to vary the terms of a written instrument59, nor that
secondary evidence was admitted60, nor that a proper
foundation for impeachment was not laid61, nor that
there was a variance between the pleading and the
proof62. In all cases the objection should not stop
with declaring the evidence incompetent, but in or-
der to be of any avail it must state in what manner
it is incompetent and what facts constitute the in-
competency63.
(c) INCOMPETENT, IEEELEVANT AND
IMMATERIAL:— Sec. 434. The objection to evi-
dence as being "incompetent, irrelevant and im-
material" is so generally heard in trials, whether
civil or criminal, to the court or a jury, that it has
58. Young v. Ry. Co., 52 Mo. App. 530.
69. John Hutchinson Co. v. Pinch, 107 Mich. 15; 64 N. W. 729; 86
N. W. 340.
60. Kenosha Co. v. Sheet, 82 la. 640 ; 48 N. W. 933.
Walser v. Wear, 141 Mo. 443; 42 S. W. 928.
Eversdon v. Mayhew, 85 Cal. 1; 21 Pac. 431.
61. Frankel v. Wolf, 7 Misc. Rep. 190 (N. T.).
62. Keigher v. &t Paiil, 73 Minn. 21 ; 75 N. W. 732.
Burlington Co. v. Miller, 19 U. S. App. 588 ; 60 Fed. 254 ; 8 C. C.
A. 612.
White v. Craft, 91 Ala. 139 ; 8 So. 420.
Le Mesnager v. Hamilton, 101 Cal. 532; 35 Pac. 1094.
63. State v. Eisenhour, 132 Mo. 140 ; 33 S. W. 785.
Benson v. State, 119 Ind. 488 ; 21 N. E. 1109.
Jones v. Inness, 32 Kans. 177 ; 4 Pac. 95.
Gladstone Bank v. Keating, 94 Mich. 429; 53 N. W. 1110.
Bagley v. Lodge, 31 111. App. 618.
426 THE LAW OF WAIVER.
come to be regarded by the layman as a part of tae
stock-in-trade of every lawyer. And it would be
thought, from simply listening to many trials, that
the lawyer may so regard it himself. But a review
of the authorities in which this blanket objection
has been considered will be convincing that it has
not the efficiency as a healing potion that a majority
of those practicing the profession suppose it to
have. This will become apparent by remembering
the rule hereinbefore adverted to that the right to
object to the admission of evidence is waived if an
objection interposed fail to specify the grounds ren-
dering it inadmissible, to which rule nearly all
courts give strict adherence. Many lawyers, how-
ever— and it may be truer of the young than of the
old — feel it incumbent upon them to make some ob-
jection when evidence detrimental to their clients
is offered, and knowing no other at all applicable,
fall back upon the proposition that it is incompe-
tent, irrelevant and immaterial, hoping that when
the smoke of battle has cleared away they may be
able to see more clearly wherein the incompetency,
irrelevancy or immateriality lay embedded. But
appellate courts do not look favorably upon at-
tempts to cover every conceivable error by such
generalities. For they say that a suitor has the
right to be fairly appraised by the language of the
objection just what point is made against his evi-
dence to the end that he may then and there, if pos-
sible, save himself from the consequences of er-
ror64, and courts are entitled to know exactly what
64. Kolka v. Jones, 6 N. Dak. 461; 71 N. W. 558; 66 A. S. R. 615,
citing :
Springer Co. v. Faulk, 8 C. C. A. 224 ; 59 Fed. 707.
Warren v. Warren. 93 Va. 73 ; 24 S. E. 913.
Hutchinson Co. v. Pinch, 107 Mich. 12; 64 N. W. 729; 66 N. W.
340.
CIVIL PEACTICE. 427
complaint is made so that they may intelligently
rule upon the objection65.
Sec. 435. So, where there is a general objec-
tion to evidence a part of which is admissible and
a part is not, the objection is not sufficient to ex-
clude any66, for the rules of evidence under which
objections are permitted to be made were not de-
signed for the purpose of allowing them to be made
grab-nets of to catch anything that might get
fastened thereon. Counsel, who are presumed to
have studied their cases, ought to be able to state
the particular objections, and if none are stated, it
is fair to assume that none exist, since an objection
that cannot be particularly stated is not worth the
making. The rule is a reasonable one, fair to the
court and not burdensome to the parties67.
Sec. 436. So, the rule being that objection to
the introduction of evidence on one ground is a
waiver of any right to object on other grounds, and
that a general objection is a waiver of special
grounds, it necessarily follows that evidence to
which a general objection is interposed will not be
excluded on account of such general objection if it
be competent for any purpose68. As an illustration
of this rule, plaintiffs brought an action against a
Bright v. Ecker, 9 S. Dak. 449 ; 69 N. W. 824.
Levine v. Lancashire Co., 66 Minn. 138; 68 N. W. 855.
Hawver o. Bell, 141 N. T. 140; 36 N. B. 6.
Ladd v. Sears, 9 Oreg. 244.
Taylor v. Wendling, 66 la. 562; 24 N. W. 40.
66. Hoard v. Little, 7 Mich. 468.
Miller v. State, 12 Lea 225 (Tenn.).
66. Gofer v. Scroggins, 98 Ala. 342 ; 39 A. S. R. 54.
St. Louis Ry. Co. v. Hendricks, 48 Ark. 177; 3 A. S. R. 220.
67. Ohio Ry. Co. v. Walker, 113 Ind. 196; 15 N. E. 234; 3 A. S. K.
638.
Milligan v. Ry. Co., Ill Mich. 629; 70 N. W. 133.
New York Co. v. Gallaher ,79 Tex. 685 ; 15 S. W. 694.
*8. Miss. Mills v. Smith, 69 Miss. 299; 30 A. S. R. 546.
428 THE LAW OF WAIVEE.
railroad company for damages from an excavation
on plaintiff's land by defendant. For the purpose
of ascertaining the amount of the damage, witnesses
were asked by plaintiffs, "What effect did the cut
have upon the value of the property?" and upon
their replying that its effect was to depreciate the
value of the property, they were then asked "To
what extent", and in reply stated the amount. These
questions were objected to by the defendant on the
ground that they were incompetent, irrelevant and
immaterial; and on appeal of the case it was urged
that the opinions of the witnesses should have been
limited to the market value of the property before
and after the excavation, and that the jury should
have drawn its conclusion of the amount of damage
from such evidence rather than from the opinions of
the witnesses. But the court said that if this special
objection had been made at the trial the plaintiffs
could have asked the questions in such form as to
obviate the objection; but it was further said that
it is well settled that, unless the evidence is inad-
missible for any purpose, a party is not at liberty
under a general objection afterwards to urge a
special objection69.
Sec. 437. Since a general objection waives
special grounds of complaint as to offered evidence,
an objection thereto as incompetent, irrelevant and
immaterial waives the question of the competency
of a witness70, that the evidence was not the best
«9. Eachus v. Los Angeles Ry. Co., 103 Cal. 614; 37 Pac. 750; 42
A, S. R. 149.
Crocker v. Carpenter, 98 Cal. 418; 33 Pac. 271.
See, also: Bundy v. Cunningham, 107 Ind. 360; 8 N. E. 174.
Wilson v. Reeves, 70 Mo. App. 30.
70. Ball v. Keokuk Ry., 74 la. 132; 37 N. W. 110.
CIVIL PRACTICE. 429
evidence71, that no proper foundation was laid72,
that no preliminary proof of the execution and de-
livery of a deed was made73, that the publication
of a city ordinance was not established74, that a city
ordinance was invalid75, that a question is leading76,
that an answer is not responsive77 or that evidence
is hearsay78.
(d) EXCEPTIONS TO RULE:— Sec. 438.
The rules announced in this division are general in
their application, but not without exceptions. The
requirement that the objection shall point out the
evidence and the particular grounds rendering it in-
admissible, and holding all grounds waived if not
specified, is for the purpose of calling to the atten-
tion of the court and the opposite party possible er-
rors in order that they may be corrected or obvi-
ated. But the cases in which this object could not
possibly be attained constitute the exceptions to the
rule, and the holding of the courts in this connection
is that if the defect could not be cured by a special
objection, a general objection, or the total want ol an
objection, is no waiver of the defect in the evidence
71. Rich v. Trustees, 158 111. 242; 41 N. E. 924.
Homestead Co. v. Buncombe, 51 la. 525 ; 1 N. W. 725.
8 Enc. PI. & Pr. 232 and cases cited.
72. Seventy-Day Assoc. v. Fisher, 95 Mich. 274 ; 54 N. W. 769.
73. Rupert v. Penner, 35 Neb. 587 ; 53 N. W. 598.
Knoll v. Klessling, 23 Oreg. 8 ; 35 Pac. 248.
Calhoun v. Hannan, 87 Ala. 277.
Thompson v. Ellenz, 58 Minn. 301; 59 N. W. 1023.
74. Klotz v. Wlnona Ry. Co., 68 Minn. 341 ; 71 N. W. 257.
Chicago Ry. v. People, 120 111. 667; 12 N. E. 207.
76. Pittsburg Ry. v. Lyons, 159 111. 576; 43 N. E. 377.
76. Tannish v. Tarbox, 57 Minn. 245 ; 59 N. W. 300.
77. O'Callaghan v. Bode, 84 Cal. 489 ; 24 Pac. 269.
78. Sherwood v. Sissa, 5 Nev. 349.
Yeatman v. Erwin, 5 La. 265.
430 THE LAW OF WAIVER.
and same may be taken advantage of at any time79.
This is analogous to the rule that objections to a
complaint for failure to state a cause of action are
never waived, for the theory is that in the latter
case no cause of action is alleged and in the former
none is proved.
(e) OBJECTIONS ABANDONED :— Sec. 439.
Even if a party has made a proper objection to the
admission of evidence and duly excepted to the
court's ruling, he is not yet over the shoals; for he
may by his subsequent conduct waive his right to
insist on his objection. Thus, if he leave to the dis-
cretion of a witness the objection to the privileged
character of the facts inquired about he waives the
right to further object to such testimony as being
privileged80. Or, if he introduce as a part of his
case the same evidence objected to, he thereby
waives his right to object81 ; and such result has
been held to have been produced by his bringing the
same evidence out on cross-examination82, although
such is doubtless not true if he cross-examine the
79. Nutwell v. Tongue, 22 Md. 419.
Espalla v. Richard, 94 Ala. 159; 10 So. 137,.
Dow v. Merrill, 65 N. H. 107 ; 18 Atl. 317.
McCadden v. Lowenstein, 92 Tenn. 614; 22 S. W. 426.
Snowden v. Coal Co., 16 Utah 366 ; 52 Pac. 599.
Lothrop v. Roberts, 16 Colo. 250; 27 Pac. 698.
Connor v. Black, 119 Mo. 126; 24 S. W. 184.
Tozer v. N. T. Ry., 105 N. T. 659; 11 N. B. 846.
Waller v. Leonard, 89 Tex. 507; 35 S. W. 1045.
Hodges v. Hodges, 106 N. Car. 374; 11 S. E. 364.
Bowman v. Eppinger, 1 N. Dak. 21 ; 44 N. W. 1000.
Brumley v. Flint, 87 Cal. 471 ; 25 Pac. 683.
State v. Soule, 14 Nev. 453.
Greenleaf v. Ry. Co., 30 la. 301.
SO. Scales v. Henderson, 44 S. Oar. 548; 22 S. E. 724.
81. Miles v. Chicage Ry., 76 Mo. App. 484.
82. Schroeder v. Michel, 89 Mo. 43; 11 6. W. 814.
CIVIL PRACTICE. 431
same witness upon the evidence to which he has
properly objected83.
B. VAEIANCE:— Sec. 440. Where there is
a variance between the pleading and the proof, such
variance is fatal to a recovery. But it is not so
unless properly taken advantage of by the party en-
titled to insist upon it. To present the question of
variance as one of law the evidence should be ob-
jected to upon that ground at the time it is offered,
or when the variance becomes apparent, the party
should move to exclude the evidence, or in some other
appropriate way the question should be raised so
that the trial court may pass upon it ; and, to prop-
erly raise the question in any of these modes, the
variance should be distinctly pointed out so as to en-
able the trial judge to pass upon it understandingly,
and to enable the other party, if such a course
should become necessary, to obviate the objection
by an amendment 84. Thus, it was held that in the
appellate court an objection that there was a vari-
ance between an instrument set out in the declara-
tion and the one offered and admitted in evidence
could not be made when objection on this ground
was not made in the court below although objection
was there made on other grounds85. In other
words, objection to evidence on the ground of vari-
ance between it and the pleading under which it was
offered must specify the variance as ground of ob-
83. Kans. City Ry. Co. v. Crocker, 95 Ala. 412 ; 11 So. 262.
Lyons v. Elevator Co., 26 App. DIv. 57 ; 49 N. Y. Supp. 610.
84. Llbby v. Scherman, 146 111. 540; 34 N. E. 801; 37 A. S. R. 191.
85. Richelieu Hotel Co. v. Military Co., 140 111. 248; 29 N. E. 1044-
33 A. S. R. 234.
432 THE LAW OF WATVER.
jection86, must be made at the time it is offered or
as soon as the variance becomes apparent87, cannot
be made after verdict88, or on a motion for a new
trial89, or on appeal90 ; and unless made at the proper
time and in the proper manner it will be held
waived. The only exception to such rule is the case
where the variance is so pronounced as to leave the
allegations without supporting proof in their en-
tire scope91.
3. EXCEPTIONS TO RULINGS OF THE
COURT-
A. IN GENERAL:— Sec. 441. The object of
an objection to any portion of the procedings be-
fore courts is to present to the court the complaint
a party has against those matters which, under the
rules of procedure, he claims as prejudicial to his
86. Colfax Trust Co. v. So. Pac., 118 Gal. 648; 50 Pac. 776; 40 1* R.
A. 78.
Murchie v. Peck, 160 111. 175 ; 43 N. E. 356.
Dano v. Sessions, 65 Vt. 79 ; 26 Atl. 585.
Sup. Council v. Fidelity Co., 63 Fed. 48.
87. Strauss v. Young, 36 Md. 246.
Cunningham v. Bostwick, 7 Colo. App. 169 ; 45 Pac. 151.
Shmit v. Day, 27 Oreg. 110 ; 29 Pac. 870.
Shenandoah Ry. v. Moose, 83 Va, 827; 3 S. B. 796.
88. Doyle v. Mulren, 7 Abb. Pr. (N. S.) 258.
89. Waidner v. Pauly, 141 111. 442 ; 30 N. E. 1025.
90. Wechselbery v. Bank, 64 Fed. 90 ; 26 L. R. A. 470.
Broughel v. Telephone Co., 72 Conn. 617; 49 L. R. A. 404.
Willey v. Elec. Lt Co., 168 Mass. 40; 46 N. E. 395; 37 L. R. A.
723.
Fryer v. Breeze, 16 Colo. 323 ; 26 Pac. 817.
Bond v. State, 56 Ark. 444; 19 S. W. 1062.
Lary v. Lewis, 76 Ga. 46.
Emerson v. Gainey, 26 Fla. 133 ; 27 So. 526.
Challis v. Atchison, 45 Kans. 22 ; 25 Pac. 228.
Smith v. Phelan, 40 Neb. 765; 59 N. W. 562.
Bardwell v. Anderson, 13 Mont. 87 ; 32 Pac. 285.
Ireland v. Drown, 61 N. H. 638.
Cremer v. Miller, 56 Minn. 52 ; 57 N. W. 318.
Rainsford v. Massengale, 35 Pac. 774.
Shanks v. Whitney, 66 Vt. 405 ; 29 Atl. 367.
$1. Roberta v. Graham, 6 Wall. 578 (U. S.).
CIVIL PRACTICE. 433
rights. An exception is the follow-up complement
of the objection, the registered intention of the
party to rely upon his objection for the purpose of
reviewing in the appellate court the ruling of the
court below. And as an objection is necessary in
order to bring the cause of complaint to the atten-
tion of the trial court, so is the preserving of an ex-
ception essential to procure a review of alleged er-
ror in the ruling thereon. And if an exception be
not taken to the ruling of the court, a party will be
held to have abandoned or waived his objection and
no error of the court in such ruling can be later
complained of by him. Therefore, to constitute a
complete record sufficient for the review of alleged
errors, there must be an objection to such alleged
erroneous procedure, a ruling thereon and an ex-
ception to the ruling.
Sec. 442. As objections must specify clearly
the matters constituting the cause of complaint, so,
exceptions, to be of any avail, must present distinct-
ly and specifically the ruling objected to. A case
ought not to be left in such condition after trial that
the defeated party may hunt through the record
and if he finds an unsuspected error, attach it to
a general exception and thus obtain a reversal of
the judgment upon a point that may never have
been brought to the attention of the court below92.
And they must be sufficiently specific that the
court may know to what ruling the exceptions are
intended to apply. Therefore, an exception must
be taken to each ruling as made, as a single ex-
ception will not be sufficient to cover several rul-
ings. It is well established, also, that the exception
t2. Sprlngfleld Ins. Co. v. Sea, 21 Well 162 (U. S.).
434 THE LAW OF WAIVER.
must be taken at the time the ruling or decision
is made, for a rule permitting it at any other time
would be the cause of endless confusion in attempts
to connect the exception to the proper ruling. So,
it is held practically uniformly that erroneous rul-
ings or decisions of the trial court are waived,
even though properly objected to, unless an excep-
tion is taken at the time and before any further
steps are taken in the case93. The rule however,
is modified through statutory provision in some
states, and the procedure is governed thereby. It
is not our object, however to cover extensively in
these pages the subject of exceptions; our pur-
pose is to show what may be waived and what
will amount to a waiver in the taking or failing to
take exceptions.
B. TO EXCLUSION OF EVIDENCE :— Sec.
443. The negligence or unskillfulness of counsel is
responsible for losses to litigants more frequently
through failure to properly conduct their trial
so as to present errors to an appellate court for re-
view than in any other phase of the proceeding.
For such there is little excuse, for the rules are sim-
ple and easily followed if proper attention be given
91. Laird v. Upton, 8 N. Mex. 409 ; 45 Pax:. 1010.
Territory v. Baker, 4 N. Mex. 236; 13 Pac. 30.
Allen v. Sallinger, 108 N. Car. 159; 12 S. E. 896.
Lester v. Ga. Ry., 90 Ga. 802; 17 S. E. 113.
Carelton v. Lewis, 67 Me. 77.
Barney v. Scherling, 40 Miss. 320.
Matsinger v. Fort, 118 Ind. 107; 20 N. E. 653.
Meier v. Morgan, 82 Wis. 289; 52 N. W. 174.
McAnaw v. Matthis, 129 Mo. 142; 31 S. W. 344.
Bransford v. Karn, 87 Va. 242 ; 12 S. E. 404.
Powers v. McCue, 48 Kans. 477; 29 Pac. 686.
Franks v. State, 12 Oh. St. 1.
Stedham v. Creighton, 28 S. Car. 609; 9 S. E. 465.
United States v. Gary, 110 U. S. 51.
Hanna v. Maas, 122 U. S. 24 ; 7 Sup. Ct. R. 1055; 30 L. Ed. 1117.
CIVIL PKACTICB. 435
to details. Thus, the rule is of long standing and
the object of general adherence by the courts that
to reserve any ruling of the trial court in excluding
evidence, a pertinent question must be asked the
witness testifying, and, upon objection, a statement
made to the court as to what the answer will be, and
an exception at the time to the adverse ruling of
the court94. And it is said that no rule of practice
is better settled than that in taking exception to
the decision of the court in overruling the offer of
evidence or excluding a defense, the exception must
state the ground upon which the offer was made95;
and that an exception to the exclusion of a question
cannot be maintained where there is nothing to
show what the answer would have been or what
the exceptant expected to prove thereby96. Fur-
thermore, the exception must be specific and di-
rected to the exclusion of that evidence alone which
is illegal for a general exception to the entire rul-
ing of the trial court in granting a motion to exclude
evidence in general including both legal and illegal
evidence will not be sufficient to present any ques-
tion for review97. The principle obtaining that
the failure of the prejudiced party to except to the
ruling of the trial court in excluding evidence is a
waiver of any error in such ruling and debars such
94. Kern v. Bridwell, 119 Ind. 226 ; 21 N. B. 664 ; 12 A. S. R. 409.
Chicago Ry. v. Champion, 9 Ind. App. 510; 36 N. E. 221; 37
N. E. 21; 71 A. S. R. 357.
Ebner v. Mackey, 186 111. 297; 57 N. E. 834; 78 A. S. R. 280.
Flach v. Gottschalk, 88 Md. 368 ; 41 Atl. 908 ; 71 A. S. R. 418.
95. Dale v. See, 51 N. J. I,. 378; 18 Atl. 306; 14 A. S. R. 688.
96. Shinners v. Locks & Canals, 154 Mass. 168 ; 28 N. E. 10 ; 12
L. R. A. 554 .
$7. Henry v. Hall, 106 Ala. 84; 17 So. 187; 54 A. S. R. 22.
436 THE LAW OF WAIVER.
party from relying thereon in the appellate court98,
it is further the doctrine of the cases that the ex-
ception must be taken at the time the evidence is
excluded or it will be held waived". Thus, an ex-
ception not taken until the term of court following
the trial is too late100, and even where it is not
taken until the case is submitted to the jury1 the
question cannot be reviewed on appeal. It is of
no moment at what stage of the trial the excluded
evidence was offered and rejected, the rule is the
same, and an exclusion by refusal to re-open the
case to admit it must be excepted to at the time or
any error therein will be held waived2.
C. TO ADMISSION OF EVIDENCE :— Sec.
444. The principles of waiver applying to excep-
tions to the decisions of the trial court excluding
or rejecting evidence are by analogy applicable
to cases wherein objections are made to the admis-
sion of evidence. So, objections to the admission
of evidence become abortive in so far as the review
of errors thereon in the appellate court may be
98. Belk v. Meaghler, 104 U. S. 279; 26 L. Ed. 735.
Pittsburgh Co. v. Heck, 102 U. S. 120; 26 L. Ed. 58.
Collier v. Jenks, 19 R. I. 493; 34 Atl. 998.
Lewis v. McDougall, 19 Wash. 388 ; 52 Pac. 664.
Newmark v. Marks, 28 Pac. 960.
Marfel v. Knott, 128 Pa, SL 528; 18 Atl. 390.
Souster v. Black, 87 la. 519 ; 54 N. W. 534.
Roehl v. Baasen, 8 Minn. 26.
Chicago Co. v. Elliott, 117 Mo. 549 ; 24 S. W. 53.
Emeric v. Alvarado, 90 Cal. 444 ; 27 Pac. 356.
Mahany v. People, 138 111. 311; 27 N. E. 918.
99. Voorman v. Voight, 46 Cal. 392.
Downey v. Read, 125 Mo. 501; 28 S. W. 860.
State v. Ballard, 79 N. Car. 627.
Griggs v. Howe, 31 Barb. 100.
Weis v. Madison, 75 Ind. 241.
Roberts v. Graham, 73 U. S. ; 6 Wall 578; 18 L. Ed. 791.
100. U. S. v. Carey, 110 U. S. 51.
1. Roberts v. Graham, supra.
2. Barnum v. Andrews. 106 Mich. 81 ; 63 N. W. 983.
CIVIL PRACTICE. 437
concerned unless the objection be supported and
re-enforced by a proper exception ; for without such
exception, the objecting party will be held to have
abandoned his objection and waived any error of
the trial court in its ruling on the evidence8. And
to be of any avail, the exception must be timely,
following immediately after the ruling of the
court4, for if be not made at that time, much diffi-
culty would be incurred in finding the evidence ob-
jected to and attaching it to the proper exception.
To permit or countenance this would be going be-
yond the bounds of reason, for the purpose of courts
is to administer justice through convenient and
speedy means, and rules of evidence are devised
and applied to facilities the despatch of judicial
business, and not to become straws to save sub-
merged counsel. These rules are uniformly applied
unless changed by statute or rules of court5. Thus,
it is held that a party objecting to the admission of
evidence will be held to have waived any error in
3. Clark v. Hodges, 65 Vt. 273.
Newport News v. Pace, 158 U. S. 63.
Sahlien v. Lonoke Bank, 90 Term. 221; 16 S. W. 373.
Halstead v. Horton, 38 W. Va. 727.
Kumler v. Ferguson, 22 Minn. 117.
Branson v. Com. 92 Ky. 330 ; 17 S. W. 1019.
Morris v. Everly, 19 Colo. 529 ; 36 Pac. 150.
Benepe v. Wash., 38 Kans. 407; 16 Pac. 950.
Fager v. State, 22 Neb. 332; 35 N. W. 195.
4. Chambers v. Baptist Soc., 1 B. Mon. 215 (Ky.).
Pool v. Fleeger, 36 U. S. ; 11 Pet. 185; 9 L. Ed. 681.
Texas, etc., Ry. v. Saxton, 7 N. Mex. 302 ; 34 Pac. 532.
Tayloe v. Steamship Co., 88 N. Car. 15.
Guerlnger v. Creditors, 33 La. Ann. 1279.
Feidler v. Motz, 42 Kans. 519 ; 22 Pac. 561.
Griffiths v. Hanks, 91 Mo. 109 ; 4 S. W. 508.
Downey v. Read, 125 Mo. 501; 28 S. W. 860.
Collins v. Bank, 75 Tex. 254 ; 11 S. W. 1053.
McPhee v. Sullivan, 77 Wls. 33; 45 N. E. 808.
Watson v. Skating Rink, 177 111. 203 ; 52 N. E. 317.
6. In re Brundage, 31 App. Div. 348; 52 N. T. Supp. 362.
Greenbrter Ex. v. Ocheltree, 44 W. Va. 626 ; 30 S. E. 78.
438 THE LAW OF WAIVER.
the court's ruling by failing until after verdict to
have an exception noted6. The principle of waiver
of errors in the admission of evidence by failure to
preserve proper exceptions at the proper time is
equally applicable to cases tried by the court and
those tried to a jury unless changed by statute7.
Sec. 445. It makes no difference what the ob-
jection to the admission of evidence may be, the
rules are the same. The evidence may be hearsay,
secondary, parol introduced to vary the terms of a
writing, may be offered without the required found-
ation or preliminary proof, or irrelevant, immate-
rial or incompetent in any manner, but whatever be
the facts rendering it inadmissible, it will be ad-
mitted unless objection be made at the time it is of-
fered ; and if objected to at the proper time, any er-
ror of the court in its ruling receiving the evidence
will be waived unless the objector except to the
ruling of the court at the time it is made8.
Sec. 446. The principles of waiver governing
in the admission or exclusion of evidence apply
with equal force where a ruling is made on the
competency of a witness. When the testimony is
6. Tayloe v. Steamship Co., 88 N. Car. 15.
7. MoCullough v. Biedler, 66 Md. 283 ; 7 Atl. 454.
8. Coleman v. Davis, 13 Colo. 98 ; 21 Pac. 1018.
Sims v. State, 87 Ga. 589; 13 S. E. 551.
Paxon v. Brown, 61 Fed. 874.
Spies v. Illinois, 123 U. S. 143.
Allen v. Ozark Co., 55 Ark. 549 ; 18 S. W. 1042.
Sherwood v. Sissa, 5 Nev. 349.
Huey v. Drlnkgnave, 19 La. 482.
Zabel v. Hyenhuis, 83 la. 756; 45 N. W. 999.
Lyons v. Child, 61 N. H. 72.
Brown v. Oldham, 123 Mo. 621 ; 27 S. W. 409.
Lamberts v. Cooper, 29 Gratt. 61.
Holman v. Ry. Co., 114 Mich. 308; 72 N. W. 202.
Colo. Co. «. Brown, 15 Colo. 195 ; 25 Pac. 87.
Wise v. Wakefleld, 118 Cal. 107; 53 Pac. 664.
CIVIL PRACTICE. 439
offered, it is the duty of him who will be prejudiced
by the witness to register an objection to the wit-
ness and whichever way the court rule, the losing
party should have an exception noted; for if he
fail to except, he will be held to have waived his ob-
jection and any error of the court in its ruling there-
on9. And the same is true if the objection be to the
question asked10, or that evidence was not offered
in the proper time11. And it is safe to say that
the general rule, subject to but few exceptions, is
that where there is an objection in the course of
taking the evidence in a case, the ruling thereon
must be excepted to at the time or the objection is
waived and the waiver precludes consideration of
the point on appeal.
4. WAIVEE AS TO NON-SUITS :— See.
447. A non-suit is a mode of taking a case from the
jury in which the court determines as a matter of
law that there is no evidence before the jury upon
which they could find a verdict for the plaintiff. In
those jurisdictions where the practice obtains of
moving for a non-suit, the test seems to be that if
from a view of all the evidence it is apparent that
the court would be required in the interest of justice
to set aside a verdict if one should be rendered for
the plaintiff, it is the court's duty to grant a non-suit
upon motion of the defendant therefor. But, if
9. State v. Steeves, 29 Greg. 85; 44 Pax;. 898.
Walker v. State, 34 Fla. 167 ; 16 So. 80.
Brown v. Foster, 112 Mo. 297; 20 S. W. 611.
Young v. Omohundro, 69 Md. 424 ; 16 Atl. 120.
Downey v. Hicks, 14 How. 240; 14 L. Ed. 404.
Auchampaugh v. Schmddt, 70 la. 642 ; 27 N. W. 805.
10. Corcaran v. Batchelder, 147 Mass. 541; 18 N. E. 420.
Scott v. Lloyd, 9 Pet. 418 ; 9 L. Ed. 178.
11. Olmstead v. Webb, 5 App. D. C. 38; 23 Wash. L. R. 169.
Kingman v. Sharley, 1 Mo. App. 281.
440 THE LAW OF WAIVER.
viewed in its most favorable light, the evidence of
plaintiff could in any way warrant a verdict in his
behalf, a non-suit should be denied.
Sec. 448. But cases are not always made up
of the evidence of plaintiff alone, for it frequently
occurs that the defendant, in presenting his side of
the controversy, may supply a link in the chain, the
absence of which had up to that time rendered plain-
tiff's case imperfect. Accordingly, the rule has
been generally adopted that if the court has erro-
neously overruled the motion of defendant for a non-
suit on account of the absence of evidence required
to make out a case for the plaintiff, the defendant
waives his right to a non-suit and any error of the
court in overruling his motion by himself introduc-
ing evidence which supplies the defects in plain-
tiff's proof12. Or, as it has been said, "where a mo-
tion for a non-suit was improperly denied, but the
defendant then introduced testimony enabling the
plaintiff to supply the defect in his case, that de-
fendant thereby waived the objection"13. On the
trial of a cause, after the plaintiff had introduced
his evidence which, as the appellate court found,
was insufficient to warrant a verdict for him, the
defendant introduced evidence supplying the de-
fects in the case of plaintiff; and the appellate
court on this point said that it seems to be well set-
tled that if a defendant, after a motion for a non-
12. Barrow v. Lumber Co., 14 Idaho, 698 ; 95 Pac. 682.
Smith v. Compton, 6 Cal. 24.
Oakes v. Thornton, 28 N. H. 44.
13. Smith v. Compton, 6 Cal. 24, cited in:
Jennings v. Bank, 13 Colo. 417; 22 Pac. 777; 16 A, S. R. 210.
Illstad v. Anderson, 2 N. Dak. 167; 49 N. W. 659.
Bogk v. Gassert, 149 U. S. 17 ; 13 Sup. Ct R. 738.
Trickey v. Clark, 50 Oreg. 516 ; 93 Pac. 457.
N. W. Pac. Co. v. Bentley, 93 Pac. 150.
CIVIL PEACTICE. 441
suit, himself supplies the evidence on the want of
which his motion was founded, he cannot have a
reversal on the technical ground that such evidence
was not before the court when the non-suit was
asked14.
Sec. 449 It is said, too, that the defendant
waives any error of the trial court in overruling his
motion for a non-suit if he fail to renew his motion
at the time the testimony is closed and after he
has introduced evidence. The same authorities
hold him to a waiver if he introduce evidence after
the overruling of his motion15. But, despite the
eminence of the authorities sustaining the doctrine,
we find it hard to perceive its justice. The true
rule ought to be that if a defendant properly pre-
sents his motion for a non-suit after the plaintiff
has presented all of his evidence, he should not,
from the mere fact of introducing his side of the
controversy, be precluded from having a review
of the decision of the trial court overruling his mo-
tion, to which decision he has duly excepted. This
view is more persuasive in the light of the law that
the burden is upon the plaintiff to make out his case
upon his own evidence. Some cases have ap-
proached this view in saying that the denial of a
motion for a non-suit before the introduction of
the defendant's evidence will not prevent the grant-
ing of such a motion after the defendant's evidence
has been introduced, if a verdict for the plaintiff
14. Barton v. Kane, 17 Wis. 38 ; 84 A. D. 728.
Bounsaball v. Pease, 45 Wis. 511.
Hyland v. Sherman, 2 E. D. Smith 234.
15. Barrow v. Lumber Co., 14 Idaho 698 ; 90 Pac. 682.
Dunham Co. v. Dandelin, 143 111. 409 ; 32 N. E. 258.
Accident Ins. Co. v. Crandal, 120 U. S. 527; 7 Sup. Ct. R. 685.
G-aylord v. Gallagher, 20 N. Y. S. 682.
442 THE LAW or WAIVER.
could not be sustained upon the evidence16. Per-
haps most cases hold this, but they do not go far-
ther.
Sec. 450. If a defendant move for a non-suit
upon one ground, he must stay by that till the last,
for he will, by thus limiting his motion, be held to
have waived all other grounds upon which he might
have asked for a non-suit. As was said in one case,
a party cannot avail himself of a different position,
on appeal, from that which he assumed in the court
below. This doctrine is well established and is
necessary to be sustained in order that the plaintiff
may not be misled in the course of the trial and in
the settlement of the bill of exceptions in case the
non-suit should be ordered17. And if it does not
appear in the record that any grounds were stated
in the motion, there is nothing that can be re-
viewed18.
Sec. 451. But as in all other cases of rulings
or decisions by the court during the progress of a
trial, the party against whom the ruling on a motion
for a non-suit goes must take a proper and timely
exception to the ruling or he will be deemed to have
waived any error and precluded the right to have
the ruling reviewed19.
16. Fagundes v. Cent. Ry. Co., 79 Cal. 97 ; 21 Pac. 437 ; 3 L. R. A. 824.
17. Mateer v. Brown, 1 Cal. 221 ; 52 A. D. 303.
Bronzan v. Drobaz, 98 Cal. 647 ; 29 Pac. 254.
18. Loring v. Stewart, 79 Cal. 200 ; 21 Pac. 651.
19. Wyatt v. Evins, 52 Ala. 285.
McBride v. Latham, 79 Ga. 661 ; 4 S. E. 928.
Harper v. Dall, 92 N. Car. 394.
Stewart v. Davenport, 23 Minn. 346.
Blair v. Pray, 103 111. 615.
Brown v. Warren, 16 Nev. 228.
Oakes v. Thornton, 28 N. H. 44.
Harrison v. Bank, 9 Mo. 161.
CIVIL PEACTICE. 443
5. DEMURRER TO THE EVIDENCE :-
Sec. 452. A demurrer to the evidence is analogous
to a demurrer to the facts alleged in a pleading.
By it the trial court is called upon to declare the
law upon the facts presented, and it is a means of
taking the case from the jury when the facts, after
the law has been applied to them, are not sufficient
for the jury to find a verdict upon for plaintiff.
Sec. 453. In cases of a demurrer to the plain-
tiff's evidence, the authorities seem to hold, as in
cases of a motion by defendant for a non-suit, that
if the defendant demurs to the plaintiff's evidence
and his demurrer be overruled, he waives his excep-
tion to, and consequently his right to insist upon,
his demurrer by afterward introducing his evidence.
And it is said that the rule is the same where the
defendant, instead of demurring to the evidence
moves for a peremptory instruction to the jury to
render a verdict in his favor. If, after such request
is denied, the defendant introduces his evidence, he
thereby waives any objection to the ruling of the
court in denying such request20. The case from the
federal court cited in the preceding note, with others
of like holding, is cited with approval in Elliott's
General Practice21. But another case is cited in the
same work showing an opposite view of the same
question22. This latter case is from a Missouri
20. German Ins. Co. v. Frederick, 68 Fed. 144, citing:
Railroad Co. v. Hawthorne, 144 U. S. 202; 12 Sup. Ct. R. 591.
Joilet Co. v. Shields, 134 111. 209; 25 N. E. 569.
21. 2 Elliott's Gen. Prac. 865, citing:
Accident Ins. Co. v. Crandal, 120 U. S. 527; 7 Sup. Ct. R. 685.
Railroad v. Hawthorne, 144 U. S. 202; 12 Sup. Ct. R. 591.
Bradley v. Poole, 98 Mass. 169.
Gluck v. Oox, 90 Ala. 331 ; 8 So. 161.
22. Weber v. Kans. City Co., 100 Mo. 194; 12 S. W. 804 and 13 S. W.
587; 18 A. S. R. 541.
444 THE LAW or WAIVER.
court, and with due deference to the authorities first
cited, and recognizing their controlling weight, it yet
occurs to the writer that the Missouri case has the
better reasoning and the better principle back of it.
The rule supported by a majority of cases appears
technical in its application ; the reason upon which it
is founded being that by a demurrer, joined in by
both parties, the case is effectually taken away from
the jury, and it is difficult to see how a case can be
literally taken from the jury and yet submitted to
them for decision. But it should be remembered
that a demurrer to the evidence is simply saying
that the plaintiff has made no case, a proceeding
analogous to a demurrer to a complaint for failure
to state a cause of action; and the rule being uni-
versal that the latter demurrer may be made at any
time and is never waived, similar reasoning dic-
tates that the former demurrer be given the same
latitude within which to operate, and that a defend-
ant should be permitted to demur to the evidence
at the close of the plaintiff's case, introduce his evi-
dence in the event of an adverse ruling, demur
again at the close of the trial as was done in the
Missouri case, and even to insist upon it on appeal.
Of course, by introducing his evidence after the
overruling of his demurrer, a defendant runs the
risk of supplying the defects in plaintiff's case,
which would be fatal to his demurrer; but this is a
risk he should be permitted to take if he see fit as
it cannot work damage to the plaintiff, whereas,
the other rule might frequently, through the mis-
taken belief of counsel in the justness of their de-
murrer, be the cause of grievous hardships to liti-
gants.
Sec. 454. Of course, after the court rules upon
CIVIL PRACTICE. 445
a demurrer to the evidence, it is necessary, as
in all other decisions, that the losing party ex-
cept to the ruling in order to have it reviewed on
appeal ; for a failure to so except is deemed an aban-
donment of the demurrer and a waiver of any right
to insist upon it on appeal.
6. DIRECTING VEEDICT :— Sec. 455. When
the plaintiff, in the trial of a civil action, has intro-
duced all of his evidence other than that properly
to be offered as rebuttal, if there be nothing more
than a mere scintilla of evidence in support of the
cause of action alleged in the complaint or petition,
the defendant has the right, upon proper applica-
tion, to have the court direct the jury to render a
verdict for him. The plaintiff has the same right to
a directed verdict at the close of the defendant's
evidence if there be nothing more than a scintilla of
evidence in support of the alleged defense. But in
order for his application to have any reserved force
or future effect, the party moving for a directed ver-
dict must stand squarely upon his motion ; for if he
introduce evidence after the overruling of his mo-
tion, he will be deemed to have abandoned it and
waived his right to insist upon the ruling of the
court as error23. This rule does not mean, however,
that after a party's motion to direct a verdict has
been overruled, his subsequently introducing evi-
dence waives his right to again make the same re-
quest at the close of all the evidence24. But the lat-
23. Columbia v. Hawthorne, 144 U. S. 202 ; 12 Sup. Ct. R. 591.
Walker v. Windsor Bank, 56 Fed. 76.
Chicago Co. v. Van Vleck, 143 111. 480; 32 N. E. 262.
Poling v. Ohio, etc., Co., 38 W. Va. 645; 18 S. E. 782.
24. Weber v. Kans. City Co., 100 Mo. 194; 12 S. W. 804 and 13 S. W.
587; 18 A. S. R. 541.
McPherson v. St. Louis Ry. Co., 97 Mo. 254 ; 10 S. W. 84«.
Rochat v. No. Hudson Co., 49 N. J. L. 445 ; 9 Atl. 688.
446 THE LAW OF WAIVEE.
ter request is not a revival of the former, for that
has been abandoned through waiver; it is merely a
new motion to direct, made as if no other had been
interposed.
7. INSTRUCTIONS—
A. IN GENERAL:— Sec. 456. Among the in-
numerable windings and turnings occurring in the
trial of almost every case where the services of a
jury are availed of, any court is likely to fall into
error in the matter of instructing the jury as to the
law to be applied to the facts of the particular case.
For this reason, it is necessary for counsel to assist
courts all they may by calling to their attention er-
rors or irregularities in the giving or failing to give
instructions, so that they may be avoided. And to
the same extent that counsel must point out errors
to the trial court in its instructions, they must also
make request for instructions in any particular they
deem material, for otherwise in either instance any
error will be deemed waived.
B. INSTRUCTIONS GIVEN:— Sec. 457. Fol-
lowing the rule generally applicable to all subjects
of the law, a party having cause of complaint
against instructions given by the court must, for the
benefit of the court and his opponent, point out the
alleged defects in order that errors may be cor-
rected and the expense and annoyance of an appeal
and a second trial thus obviated. This is properly
done by an objection to the instruction in which is
pointed out the particular reasons rendering the in-
structions improper. This objection is solely for
the benefit of the trial court and the opposing party ;
but if the objector desire to save the point made by
him for the purpose of having alleged errors re-
CIVIL PEACTICE. 447
viewed in an appellate court, he must, in the event
of a ruling by the court adversely to him, duly ex-
cept to such ruling. For it is the general rule, sub-
ject only to statutory qualification in any case of de-
parture, that without such objection taken at the
trial to instructions there given, error cannot be
predicated upon them in the appellate court ; and by
such failure to object and to point out to the trial
court what is claimed as error, a party waives the
irregularities or defects in the instructions25. The
rule is the same whatever may be the reasons or
grounds of complaint rendering the particular in-
struction objectionable. It may be that the instruc-
tions are erroneous in that they do not state the law
correctly26, or that they are insufficient27, or that
25. State v. Bayne, 88 Mo. 604.
Ritzenger v. Hart, 43 Mo. App. 183.
McDaneld v. Logi, 143 111. 487; 32 N. E. 423.
Pielke v. Chicago Co., 6 Dak. 444; 43 N. W. 813.
McSwain v. Ho well, 29 Fla. 248 ; 10 So. 588.
Chattahoochee Co. v. Sullivan, 86 Ga. 50; 12 S. E. 216.
State v. Sheard, 35 La. Ann. 543.
People v. Caldwell, 107 Mich. 374; 65 N. W. 213.
Carter v. Mo. Co., 41 Pac. 356 (Okla.)
St. Louis, etc. Co. v. Vincent, 36 Ark. 451.
Mo. Co. v. Johnson, 44 Kans. 660; 24 Pac. 1116.
Wheatley v. Waldo, 36 Vt. 237.
Burnet v. Cavanaugh, 56 Neb. 190; 76 N. W. 578.
McFarland v. So. Imp. Co., 107 N. Car. 368.
State v. Anderson, 20 Wash. 193 ; 55 Pac. 39.
Dawson v. Coston, IS Colo. 493 ; 33 Pac. 189.
Gum v. Murray, 6 Mont. 10.
Thirkfleld v. Mtn. View Assoc., 12 Utah 76 ; 41 Pac. 564.
Jenkins v. Dean, 130 N. Y. 275 ; 29 N. E. 126.
Territory v. O'Donnell, 4 N. Mex. 196 ; 12 Pac. 743.
Lawrence v. Bucklen, 45 Minn. 195 ; 47 N. W. 655.
Simonds v. Baraboo, 93 Wis. 40 ; 67 N. W. 40.
Leeper v. State, 29 Tex. App. 63.
Kennedy v. Cunningham, 59 Ky. 538.
Eddy v. .Lafayette, 163 U. S. 456 ; 16 Sup. Ct. R. 1082 ; 41 L. Ed,
225.
26. Williamson v. State, 30 Tex. App. 330; 17 S. W. 722.
Bourke v. Van Keuren, 20 Colo. 95; 36 Pac. 882.
27. Box v. Kelso, 5 Wash. 360; 31 Pac. 973.
448 THE LAW or WAIVER.
i
they are not suited to the issues28, or are a misstate-
ment of the issues29, or of law30, or a submission of
law to the jury31, or that they are a comment on the
weight of the evidence32; or there may be error in
failing to define terms used in instructions33, or in
assuming controverted facts to be uncontroverted34,
or the instructions may be subject to successful at-
tack for any other reason going to their substance
or applicability to the issues involved ; but whatever
the cause of complaint or the ground of objection,
the attention of the court must be called thereto at
the time of the giving of the defective instructions,
or the matter cannot be urged on appeal35.
Sec. 458. As well as being deficient in some
matter of substance, instructions may be erroneous
in matters of form, the rule being the same in either
case, for a proper objection must be made or any er-
ror will by such failure to object be waived. Thus,
the fact that instructions are incomplete36, or uncer-
tain and ambiguous37, or that they are inconsistent
28. Shaw v. N. T. etc. Co., 150 Mass. 182 ; 22 N. B. 884.
Stoner v. Devilbiss, 70 Md. 144; 16 Atl. 440.
29. Milmo v. Adams, 79 Tex. 526; 15 S. W. 690.
30. Bergh v. Sloan. 53 Minn. 116 ; 54 N. W. 943.
31. Stansbury v. Fogle, 37 Md. 369.
32. Atchison Co. v. Worley, 25 S. W. 478 (Tex.)
33. People v. Flynn, 73 Cal. 511 : 15 Pac. 102.
Cogswell v. West., etc., Co., 5 Wash. 46; 31 Pac. 411.
Johnson v. Mo. Pac., 96 Mo. 340, 9 S W. 790.
34. State v. Fenalson, 78 Me. 495; 7 Atl. 385.
35. Phelps v. Mayer, 15 How. 150 (U. S.).
Cheatham v. Wilbur, 1 Dak. 335; 46 N. W. 580.
Hayes v. Solomon, 90 Ala. 520; 7 So. 921.
Spooner v. Handley, 151 Mass. 313 ; 23 N. B. 840.
Wray v. Carpenter, 16 Colo. 271 ; 27 Pac. 248.
Burr v. Joy, 151 Mass. 295; 23 N. E. 838.
Humph v. Hiott, 35 S. Car. 444 ; 15 S. E. 235.
Muetze v. Tuteur, 77 Wls. 236 ; 46 N. W. 123.
36. Goldhammer v. Dyer, 7 Colo. App. 29 ; 42 Pac. 17T.
37. People v. Olsen, 80 Cal. 122; 22 Pac. 125.
Holm v. Sandberg, 32 Minn. 427; 21 N. W. 416.
CIVIL PRACTICE. 449
with each other38, or that formal requirements have
not been complied with, as that special instructions
are not numbered and signed39, or two paragraphs
were written on the same page40, or that the instruc-
tions are misleading41 — any of these defects, while
fatal to the instructions, if properly called to the at-
tention of the court, will be held waived unless ob-
jected to at the time the instructions are given.
(1) WAIVER OF WRITTEN INSTRUC-
TIONS:—Sec. 459. Parties having the right to a
written charge to the jury cannot with impunity sit
silently by and see that right transgressed. To be
available in a higher court, complaint of error must
be predicated upon a proper and timely objection in
the trial court to the manner in which instructions
are given. The objection must be timely in that it
must be registered at the time the instructions are
given ; and it must be proper by being placed on the
particular ground that oral instructions are not
satisfactory; otherwise, the irregularity or error
will be held waived42. And the same effect was held
to have resulted where the failure to make a timely
objection was caused by an agreement between
counsel that "at any time within which a stay was
granted either party might take exceptions to the
charges or any part thereof." The appellate court
said that it is not competent for counsel to sit by
and make no objection to oral instructions where
38. Williams v. So. Ry. Co. 110 Pac. 457 ; 42 Pac. 974.
39. Moffatt v. Tenney, 17 Colo. 189 ; 30 Pac. 348.
40. Davenport v. Cummings, 15 la. 219.
41. Pellum v. State, 89 Ala. 28 ; 8 So. 83.
42. Jacobs v. Mitchell, 2 Oolo. App. 456 ; SI Pac. 235.
Wright v. Gillespie, 43 Mo. App. 244.
Sackett's Instructions, 14.
Vanwey v. State, 41 Tex. 639.
Leonardo v. Territory, 1 N. Mex. 291.
450 THE LAW OF WAIVES.
given on that ground, and by agreement save their
exceptions weeks later. Such a course is not fair
to the court and has the support of no adjudicated
case so far as we know. When counsel so sit by
without objection, they must be held to have waived
the error43.
(2) EXCEPTIONS :— Sec. 460. As in all
other cases of error in the trial of a cause, an objec-
tion to an instruction as given is for the benefit of
the trial court, to call to its attention errors therein
so that same may be properly corrected. But on ap-
peal, the objection is futile unless followed in due
course by an exception to the court's decision over-
ruling the objection. Without this exception, the
legal conclusion is inevitable that the objector is sat-
isfied with the court's ruling and has abandoned his
objection. While this is the regular course to pur-
sue, it frequently occurs that at the outset the ob-
jection takes the form of an exception, the party ag-
grieved simply notifying the court that he excepts
to the opinion and direction of the court44. But
whatever form it may assume, the rule, except
where modified by statute45, is universal that a fail-
ure to except to an instruction amounts to a waiver
of any irregularities or errors therein, which means
43. Boss v. No. Pac. R. Co., 2 N. Dak. 128; 49 N. W. 656; 33 A.
S. R. 756.
See: Garton v. Bank, 34 Mich. 279.
U. S. v. Gough, 8 Utah 428; 32 Pac. 695.
44. 2 Thompson, Trials, Art. 2395.
46. Wesson v. State,- 109 Ala. 61 ; 19 So. 514.
Denver, etc. Ry. v. Bedell, 11 Colo. App. 139; 54 Pac. 280.
Marriner v. Jno. L,., etc. 113 N. Car. 52; 18 N. E. 94.
Little River Co. v. Fitzpatrick, 42 Oh. St. 318.
Gassert v. Bogk, 1 Mont. 585; 19 Pac. 281; 1 L. R. A. 240.
Internat'l Co. v. Click, 5 Tex. Civ. App. 224 ; 23 S. W. 833.
CIVIL PRACTICE. 451
that same cannot be nrged on appeal46. And the
rule is the same where the error is in the modifica-
tion of a requested instruction47.
Sec. 461. It is a general rule to be followed
with absolute safety and to be departed from only
with prospects of peril, that where an exception is
taken to an instruction it must point out the alleged
defect, and must be directed not to the charge as a
whole, but to those portions considered objection-
able. For a general exception is not available as to
specific defects if any one of the propositions in the
46. Lowell v. Gathright, 97 Ind. 313.
McSwain v. Howell, 29 Fla. 248.
Jackson v. Com., 12 Ky. L. R. 575 ; 14 S. W. 677.
Lobdell v. Hall, 3 Nev. 507.
McCart v. Squire, 150 Mass. 484 ; 23 N. E. 323.
City v. Smith, 47 Neb. 408; 66 N. W. 538.
Packard v. Bergen Co., 54 N. J. L. 553 ; 23 Atl. 722.
State v. Hilsabeck, 132 Mo. 348; 34 S. W. 38.
Lefkow v. Allred, 54 Mo. App. 141.
Cram v. Gas Co., 75 Hun 316.
Georgia Ry. Co. v. West, 66 Miss. 310; 6 So. 207.
Williams v. So. Pac. Ry., 110 Cal. 457 ; 42 Pac. 974.
Werner v. Jewett, 54 Kans. 530; 38 Pac. 793.
Territory v. O'Donnell, 4 N. Mex. 66 ; 12 Pac. 743.
Dugan v. Thomas, 79 Me. 221 ; 9 Atl. 354.
Chemical Co. v. Johnson, 101 N. Car. 223 ; 7 S. E. 770.
Berry v. Smith, 2 Okla. 345 ; 35 Pac. 576.
State v. Williams, 13 Wash. 33'5 ; 43 Pac. 15.
Everett v. Summer, 32 Oh. St. 562.
Leach v. Hill, 97 la. 81 ; 66 N. W. 69.
Nor fork Co. v. Hoover, 79 Md. 253 ; 29 Atl. 994.
Willard v. Petitt, 153 111. 663; 39 N. E. 991.
Hawley v. Harran, 79 Wis. 379; 48 N. W. 676.
Tucker v. U. S., 151 U S. 164.
Hedden v. Iselin, 142 U. S. 676.
Little Rock Co. v. Dallas Co., 66 Fed. 522.
47. Tracey v. State, 46 Neb. 361 ; 64 N. W. 1069 ; and It is the same
where the error is technical in its nature, as a failure to
number the instructions: Moffat v. Teeney, 17 Colo. 189; SO
Pac. 348; Jolly v. State, 43 Neb. 587; 62 N. W. 300; Cunning-
ham v. Seattle Elec. Co.. 3 Wash. 471; 28 Pac. 745; or failure of
the judge to sign the instructions; Jones v. Greeley. 25 Fla. 629;
C So. 448.-
452 THE LAW or WAIVER.
charge is correct48. And the principle that objec-
tion or exception to any proceeding on one ground
only is a waiver of all other grounds of complaint
is applicable to instructions. For it is said that a
party excepting must make his exception so specific
that the matter relied on as error will be apparent
to his adversary and to the primary court. For his
adversary, having his attention directed to the spe-
cial matter alleged erroneous, has the right and
privilege of waiving such matter rather than, by in-
sisting on it, incur the hazard and delay of an ap-
peal to a superior tribunal. The court, having its
attention specially directed to the erroneous mat-
ter, might be satisfied of the error into which it
may have fallen through inadvertence, and could
voluntarily correct it by a reversal of its rulings, and
thus protect the parties excepting from all injury49.
And one ground of exception only being specified at
the trial, no others will be considered on appeal, for
the conclusive presumption is that others are
waived50.
48. Fordyce v. Russell, 59 Ark. 312; 27 S. W. 82.
Willis v. State, 93 Ga. 208 ; 19 S. E. 43.
Campbell v. Arruth, 32 Fla. 264 ; 13 So. 432.
Crosby v. Wilson, 53 Kans. 565 ; 36 Pac. 985.
Reeves v. Harrington, 85 la. 741; 52 N. W. 517.
Cavallaro v. Tex. etc. Co., 110 Cal. 348; 42 Pac. 918.
Hickam v. People, 137 111. 75; 27 N. E. 88.
Reynolds v. Boston Ry., 43 N. H. 580.
Gross v. Hays, 73 Tex. 515 ; 11 S. W. 523.
Lichty v. Tannatt, 11 Wash. 37; 39 Pac. 260.
Newport News v. Pace, 158 U. S. 36.
Green v. Hanson, 89 Wis. 597 ; 62 N. W. 408.
People v. Hart, 10 Utah 204; 37 Pac. 330.
Main v. Oien, 47 Minn. 89 ; 49 N. W. 523.
Com. v. Tolman, 149 Mass. 229; 21 N. E. 377.
Hooks v. Houston, 109 N. Car. 623; 14 S. E. 40.
49. Irvin v. State, 50 Ala. 181, cited in:
8 Am. & Eng. Enc. L. 264.
60. Phipps v. Pierce, 94 N. Car. 514.
Concoran v. Harran, 55 Wis. 120; 12 N. W. 468.
Sanford v. Gates, 38 Kans. 405; 16 Pac. 807.
CIVIL PRACTICE. 453
Sec. 462. The cases in which the above points
have been decided are almost innumerable, and the
citation of them all would only present a mass of
adjudications for counsel to wade through, all of
which, through their various intermingling of facts,
present a parallel tendency in the same direction.
But a few illustrations will .serve to show more
clearly the application of the principles outlined.
Thus, if the court fail to write the word "given"
on an instruction as required by law, this error is
waived unless that ground of complaint be specified
in an exception51. And the same is true of failure
of the court to define malice in a case where that
definition is required52, and where the exception was
that the verdict was contrary to the instructions of
the court, this does not raise the question of the le-
gality of the instructions53. Or, where the excep-
tions are on the ground that the court did not per-
mit a question of fact to be submitted to the jury,
the exception is unavailing if there was no ques-
tion of fact involved54. So, a general exception will
not present the question of the completeness of the
instructions55. And it may be stated as a general
rule that a general exception will be insufficient to
present any special ground of error, and that such
will be waived and ineffective if any part of the in-
structions is correct or applicable56. So, where the
51. Omaha Co. v. Hansen, 32 Neb. 449 ; 49 N. W. 456.
52. People v. Thiede, 11 Utah 241 ; 39 Pac. 837.
53. Britt v. Aylett, 11 Ark. 475.
54. Guggenheim v. Kirchofer, 66 Fed. 755.
55. Hamilton v. Great Falls Co., 17 Mont 334 ; 42 Pac. 860 ; 43 Pat
713.
56. Goodwin v. Perkins, 39 Vt 598.
Grantz v. Price, 130 Pa. St. 415 ; 18 Atl. 646.
Rock v. Indian Mills, 142 Moss. 522 ; 8 N. B. 401.
Whelan v. Georgia, etc. Co., 84 Ga. 506 ; 10 S. E. 1091.
Kearney v. Snodgrass, 12 Oreg. 317; 7 Pac. 309.
454 THE LAW OP WAIVER.
general exception is to the whole charge, it will be
of no avail if any portion of the charge is correct57.
C. INSTEUCTIONS EEFUSED :— Sec. 463.
It is the duty of the court, when instructions are
given by it, to cover fully and fairly the points in-
volved in the case on trial. But if the court omit to
instruct as to any of the points at issue between the
parties, it is the duty of counsel to request instruc-
tions on the particular point desired by them to be
presented to the jury. If counsel fail to ask for
such instructions as they think should be given, they
will be held to have been satisfied and to have
waived any error of the court in the omission, the
consequence being that an appeal cannot be predi-
cated upon such error58. In this connection, a dis-
tinction exists and must be observed between the
giving of erroneous instructions and the failure to
Maling v. Crummey, 5 Wash. 222 ; 31 Pac. 600.
Frost v. Grizzly Co., 102 Cal. 525; 36 Pac. 929.
Serviss v. Stockstill, 30 Oh. St. 418.
Burton v. West Jersey Co., 114 U. S. 474.
State v. Chopin, 10 La. Ann. 458.
Probst v. Trustees, 3 N. Mex. 373 ; 5 Pac. 702.
67. Beall v. Territory, 1 N. Mex. 507.
Wallace v. Bxc. Bank, 126 Ind. 265; 26 N. E. 175.
Welcome v. Mitchell, 81 Wis. 566 ; 51. N. W. 1080.
Post v. Bird, 28 Fla. 1 ; 9 So. 888.
Fleming v. L. D. Co., 48 Kans. 773 ; 30 Pac. 166.
Brooks v. Dutcher, 22 Neb. 644 ; 36 N. W. 128.
And see extended note In 99 A. D. 114, to the case of
Strohn v. Detroit Co., 23 Wls. 126.
58. Territory v. Caldwell, 14 N. Mex. 535 ; 98 Pac. 167.
Mead v. State, 53 N. J. L. 601 ; 23 Atl. 264.
U. S. v. De Amador, 6 N. Mex. 173 ; 27 Pac. 488.
Blount v. State, 30 Fla. 287.
Darby v. Hayford, 56 Me. 246.
Com. v. Zappe, 153 Pa. St. 498 ; 26 Atl. 16.
McOadden v. Lowenstein, 92 Tenn. 614; 22 S. W. 426.
State v. Schleller, 130 Mo. 510 ; 32 S. W. 976.
Silberberg v. Pearson, 75 Tex. 287; 12 S. W. 850.
Texas Co. v. Ludlam, 26 S. W. 430 (Tex.)
Frick v. Wilson, 36 S. Car. 65; 15 S. E. 331.
Johnson v. Sherwood, 45 Minn. 9 ; 47 N. W. 262.
Small v. Williams, 87 Ga. 681 ; 13 S. E. 589.
CIVIL PRACTICE. 455
give correct and adequate instructions. In the for-
mer case the objection is sufficiently called to the at-
tention of the trial court by a single objection and
exception, and it is not necessary to request and
submit a correct instruction to be given in the place
of the erroneous one. But in the case of a mere fail-
ure to give correct instructions covering the case,
the error is not available on appeal in the absence
of a request by the appellant for a proper instruc-
tion59. And where the charge is, for any reason,
incomplete, incorrect or unsatisfactory, the party
dissatisfied with it ought, before the jury leaves
the bar, to ask the court to make it correct. He
should not acquiesce in the instruction, take his
chances with the jury, and, after the verdict is
against him, claim the benefit of error in the in-
structions60. The rule is the same whatever the
cause rendering the charge erroneous.
Sec. 464. Thus, error cannot be predicated on
the fact that an instruction is obscure where a party
complaining fails to ask for an explanatory or qual-
ifying charge61, and the same is true if the charge
be misleading62, although this latter is contrary to
some decisions which, with better reason, hold that
if the charge be clearly misleading the case should
be reversed even though correct instructions were
not requested63. The rule is applied, however,
59. 1 Blashfleld's Instructions, Art. 362.
60. Schuylkill Co. v. Munson, 14 Wall. 442 (U. S.)
61. Fife v. Com. 29 Pa. 429.
Stock-well v. Byrne, 22 Ind. 6.
62. Towns v. State, 111 Ala. 1 ; 20 So. 698.
Wyman v. Hart, 12 How. Pr. 122.
Churchill v. Gronewig, 81 la. 449 ; 46 N. W. 1063.
Jones v. State, 49 Ind. 549.
Milne v. Ponchertrain, 9 La. 257.
63. Pierson v. Duncan, 162 Pa. St. 187 ; 29 Atl. 733.
Internat. Co. v. Phillips, 63 Tex. 590.
Hill v. Newman. 47 Ind. 187.
456 THE LAW OF WAIVER.
where the instructions are vague, indefinite and un-
certain, for it is clearly the duty of him who is dis-
satisfied to present an instruction which meets with
his approval and request that it be presented to the
jury, failing in which he will be held to any error
on account of such elements in the charge64. And a
request for correct instructions is necessary in case
of ambiguity65, or where the court fails to explain
or define terms66, such as ''adverse possession"67,
"reasonable care and diligence"68, "reasonable
doubt"69, "negligence," "gross negligence," "ordi-
nary care," "unfitness," and so forth70. And it is
accessary to make a request for a proper instrue-
:ion as to probable cause in an action for malicious
prosecution71 ; or as to mental capacity where that is
involved72; notice73; adverse possession74; statute
3f limitations75 ; fellow servants76 ; measure or miti-
64. Bousel v. Stanger, 73 Tex. 670; 11 S. W. 906.
State v. Falk, 46 Kans. 500.
Clapp v. Minn., etc. Co., 36 Minn. 6 ; 29 N. W. 340.
People v. Olsen, 80 Cal. 122 ; 22 Pac. 125.
65. McQuillan v. Seattle, 13 Wash. 600 ; 43 Pac. 893.
Stratton v. Staples, 59 Me. 94.
Schoellhamer v. Rometsch, 26 Oreg. 394; 38 Pac. 344.
66. State v. Potter, 15 Kans. 302.
Texas, etc. Ry. v. O'Donnel, 58 Tex. 27.
67. Robinson v. Mclver, 23 S. W. 915 (Tex.).
68. Johnson v. Mo. Pac. Ry., 96 Mo. 340 ; 9 S. W. 790.
69. People v. Plynn, 73 Cal. 511; 15 Pac. 102.
70. Kelley v. Cable Co., 7 Mont 70.
Galveston Co. v. Arispe, 81 Tex. 517; 17 S. W. 47.
Quirk v. St. Louis Co., 126 Mo. 279 ; 28 S. W. 1080.
71. Peterson v. Toner, 80 Mich. 350 ; 45 N. W. 346.
Lueck v. Heisler, 87 Wis. 644; 58 N. W. 1101.
72. Berryman v. Schumaker, 67 Tex. 312; 3 S. W. 46.
73. Brown v. Foster, 41 S. Car. 118.
Street v. Lynch, 38 Ga. 631.
74. Robinson v. Mclver, 23 S. W. 915 (Tex.)
Wood v. Figard, 28 Pa. St. 403.
75. Hocker v. Day, 80 Tex. 529 ; 16 S. W. 322.
76. Phila. & R. Ry. v. Trainer, 137 Pa. 148 ; 20 Atl. 632.
CIVIL PKACTICE. 457
Cation of damages77; scope of employment78; false
representations79 ; effect80 ; sufficiency81 or purpose82
of evidence; explanation of pleadings83; and where
the court fails to submit to the jury an issue raised
by the pleadings84; and it is the general rule that
in order to raise the point that instructions are in-
sufficient, a request for proper instructions should
be made85. The rule is not, however, universal ; for
in some states by statute the court is required to
submit the law fairly and fully to cover the case,
and his failure to do so is error for which a reversal
will be ordered, even though no requests for instruc-
tions were made. But even if this prevail by statute
or by rule, if the instructions given fairly and sub-
stantially cover the issues involved, the failure to
give a particular instruction is not reversible error
unless a request for it is made.
(1) EXCEPTIONS TO BEFUSAL TO IN
STEUCT:— Sec. 465. A party presenting to the
court an instruction with the request that it be sub-
mitted to the jury has not thereby perfected his
77. Browning v. Wabash Ry., 124 Mo. 55 ; 27 S. W. 644.
Page v. Flnley, 8 Oreg. 45.
Buzzell v. Emerton, 161 Mass. 176 ; 36 N. E. 796.
78. Vernon v. Cornwell, 104 Mich. 62 ; 62 N. W. 175.
79. Davis v. Elliott, 15 Gray 90 (Mass.)
80. Hollywood v. Reed, 55 Mich. 308.
Rowland v. Bartlett, 86 Ga. 669 ; 12 S. E. 1068.
81. Gottstein v. Seattle Co., 7 Wash. 424; 35 Pac. 133.
Louisville Co. v. Spencer, 149 111. 97; 36 N. E. 91.
82. People v. Gray, 66 Cal. 276 ; 5 Pac. 240.
Stone v. Redman, 38 Me. 578.
Dow v. Merrill, 65 N. H. 107 ; 18 Atl. 317.
Shumard v. Johnson, 66 Tex. 70 ; 17 6. W. 398.
83. Roebke v. Andrews, 26 Wis. 312.
Conrad v. Kinzie, 105 Ind. 281 ; 4 N. E. 863.
84. Newton v. Whitney, 77 Wis. 515 ; 46 N. W. 882.
Brinzer v. Longenecker, 169 Pa, St. 51 ; 32 Atl. 60.
Lynch v. Johnson, 109 Mich. 640; 67 N. W. 908.
85. See : 1 Blashfleld, Instructions, and the several hundred cases
there cited.
458 THE LAW OF WAIVER.
right to have reviewed the ruling of the court refus-
ing to submit such instruction, but he must, after
such refusal, register a proper and timely exception,
for without such exception he will be held to have
waived any error of the court in its ruling and to
have abandoned his request86. This is only another
application of the general rule requiring a party
dissatisfied with any ruling of the court to give
notice of such dissatisfaction by means of his ex-
ception, thereby indicating to the court and op-
posing counsel that he intends to present the matter
for review in a higher court87.
Sec. 466. A party excepting to the ruling of a
court refusing to submit an instruction must point
out specifically the grounds upon which his excep-
tion is based, for a general exception will be of no
avail. And an exception made on one ground can-
not on appeal be switched to some other, for the
statement of one is a waiver of all others not called
to the attention of the trial court, and such others
will not be considered by the appellate court88. And
86. Bonino v. Caledonio, 144 Mass. 299 ; 11 N. B. 98.
Thrasher v. Postel, 79 Wls. 503; 48 N. W. 600.
Territory v. Caldwell, 14 N. Mex. 635; 98 Pac. 167.
People v. Northey, 77 Cal. 618; 19 Pac. 865; 20 Pac. 12».
Burns v. People, 126 111. 282 ; 18 N. B. 550.
Kearney v. Smith, 47 Neb. 408; 66 N. W. 538.
Poullain v. Poullain, 79 Ga. 11 ; 4 S. E. 92.
Post v. Bird, 28 Fla. 1 ; 9 So. 888.
Crane v. Schloss, 14 N. Y. Supp. 886.
Cent. Vt. Ry. v. Soper, 59 Fed. 879.
Du Souchett v. Dutcher, 113 Ind. 249; 15 N. E. 459.
87. Keeling v. Kuhn, 19 Kans. 441.
Leahy v. So. Pac. Ry., 65 Cal. 151; 3 Pac. 622.
East St. Louis Ry. v. Stout. 150 111. 9 ; 36 N. E. 96S.
State v. Brewer, 70 la. 384 ; 30 N. W. 646.
Stewart v. Murray, 92 Ind. 548.
88. Price v. Burlington Co., 42 la. 16.
Sanford v. Gates, 38 Kans. 405 ; 16 Pac. 807.
Phipps v. Pierce, 94 N. Car. 514.
Cole v. Curtis, 16 Minn. 182.
CIVIL PRACTICE. 459
it is obvious that the refusal of each separate in-
struction must be properly except ed to, for an ex-
ception to one necessarily raises no question as to
another89.
D. TIME FOE EXCEPTIONS:— Sec. 467.
The general rule being that any decision of the court
in the trial of an action detrimental to a party must
be objected to or excepted to by him at the earliest
possible moment, which is usually at the time the
ruling is made, it follows that where an objection-
able instruction is given, or a requested one refused,
exception must be taken to the giving or refusing at
the tune, or any error in the court's ruling will be
waived, unless by statute exceptions are rendered
unnecessary; and even where such provision is
made by statute, it is held that some kind of objec-
tion must be presented to the court in apt time or
error of the court cannot be urged on appeal90. The
reason of the rule is the same as in all other invol-
untary waivers — a party having a right must take
advantage of it, or if, being deprived of a right,
must register a protest, or if, failing in either of
these as the case may be, he will, as a matter of law,
be deemed satisfied with the proceeding and cannot
later object thereto.
Sec. 468. Thus, while on appeal, in the absence
of any showing to the contrary, it will be presumed
that exceptions to instructions were taken in proper
89. Ryall v. Cent Pac. Ry., 76 Cal. 474; 18 Pac. 430.
Columbia Co. v. Nat. Bank of Com., 62 Minn. 224 ; 53 N. W. 1061.
Pound v. Port Huron Co., 54 Mich. 13 ; 19 N. W. 570.
Jumper v. Com. Bank, 39 S. Car. 296 ; 17 S. B. 980.
90. City of Durango v. Luttrell, 18 Colo. 124; 31 Pac. 853.
Moffatt v. Tenney, 17 Colo. 189; 30 Pac. 348.
460 THE LAW OP WAIVER.
time91, if the record show that an exception was not
taken until after verdict, the exception then taken
will be too late and the party taking it will be held
to have waived the court's error in the giving of
the instruction92. And the same rule prevails where
the exception is to the refusal of the court to in-
struct93. And whether the exception be to the giv-
ing or refusal of instructions, it is held that any er-
ror of the court in the giving or refusal is waived
if the exception be not taken until after the jury re-
tire94, or until after part of the jury retire95; and
the same rule applies where the exception is not
taken until after a verdict has been delivered into
court96, or is taken for the first time in a motion for
91. Strlckenfaden v. Zipprlck, 49 111. 286.
Wakeman v. Lyon, 9 Wend. 241 (N. T.).
92. Thiede v. Utah, 159 U. S. 510.
State v. Hart, 116 N. Car. 976 ; 20 S. B. 1014.
Bynum v. So. Pump Co., 63 Ala. 462.
Barker v. Todd, 37 Minn. 370 ; 34 N. W. 895.
Wustland v. Potterfield, 9 W. Va. 438.
93. Holtey v. State, 75 Ala. 20.
State v. Debnam, 98 N. Car. 712 ; 3 S. B. 742.
See: State v. Varner, 115 N. Car. 744; 20 S. B. 618.
94. Barnewall v. Murrell, 108 Ala. 366 ; 18 So. 831.
Garoutte v. Williamson, 108 Cal. 135 ; 41 Pac. 13 and 413.
City of Durango v. Luttrell, 18 Colo. 124; 31 Pac. 853.
Gibson v. Sullivan, 18 Neb. 558; 26 N. W. 368.
Schroeder v. Rinehard, 25 Neb. 75 ; 40 N. W. 593.
Butler v. Cams, 37 Wls. 61.
State v. Burk, 89 Mo. 635 ; 2 S. W. 10.
Allen County v. Boyd, 31 Kans. 765 ; 3 Pac. 523.
Gibson v. State, 26 Fla. 109 ; 7 So. 376.
McDonald v. U. S., 63 Fed. 426.
Barton v. Forsyth, 20 How. 532.
Shepherd v. State, 36 Fla. 374; 18 So. 773.
Dozier v. German, 30 Mo. 216.
Branton v. O'Briant, 93 N. Car. 99.
95. Spooner v. Cuminings, 151 Mass. 313 ; 23 N. E. 839.
»«. State v. Debnan, 98 N. Car. 712 ; 8 S. B. 742.
State v. O'Donald, 4 Idaho 343 ; 29 Pac. 566.
Wash. etc. v. Hobson, 15 Gratt. 122.
Mich. Ins. Bank v. Eldred, 143 U. S. 293.
Barker v. Todd, 37 Minn. 370; 34 N. W. 895.
CIVIL PRACTICE. 461
a new trial97, or on appeal98. These rules are sup-
planted in some states by statutory provisions, or at
least modified in their application. Thus, in one
state exceptions may be taken at any time before the
entry of final judgment99, in another within three
days after verdict100, in another at any time before
verdict1, in another the exception may be taken in a
motion for a new trial2.
8. VERDICT :— Sec. 469. If a verdict as re-
turned by a jury in the trial of a cause is unsatis-
factory to either party for any reason, such party
must make a proper and timely objection or the de-
fect in the verdict will be held waived and the party
precluded from questioning it on appeal as to any
matters that could have been called to the attention
of the trial court. The objection must be specific
as to the matters or grounds rendering it defective,
for a general or blanket objection will be insufficient
to present any question for consideration3. The
rule is the same whatever the objection to or defect
in the verdict. Thus, upon appeal error cannot be
predicated upon a defect in the form of the verdict
unless an objection was made and the defect called
to the attention of the trial court and an exception
duly saved to the decision of the court overruling
97. State v. Myers, 99 Mo. 107; 12 S. W. 516.
Louisville Co. v. Hart, 119 Ind. 273; 21 N. E. 753.
Harrison v. Chappell, 84 N. Car. 258.
Vanwey v. State, 41 Tex. 639.
State v Halford, 104 N. Car. 874; 10 S. E. 524.
98. Pish v. Chicago Co., 81 la. 310 ; 46 N. W. 998.
99. Collins Ice Cream Co. v. Stephens, 189 111. 200; 59 N. E. 524.
Uhe v. Chicago Co., 4 S. Dak. 505 ; 57 N. W. 484.
100. Maxon t>. Chicago Co., 67 la. 226 ; 25 N. W. 144.
1. Vaughn v. Ferral, 57 Ind. 182.
2. Barney v. Scherling, 40 Miss. 320.
3. Mahoney v. Van Winkle, 21 Cal. 553.
Fickle v. St. Louis Co., 54 Mo. 219.
462 THE LAW OF WAIVER.
the objection4, whether the verdict be general or spe-
cial5. It has been held, however, that no exception
is necessary6. The rule is equally applicable where
the defects in a verdict are other than as to form,
as where it is contrary to or not supported by the
evidence7, or is inadequate8 or excessive in amount9.
9. FINDINGS OF FACT :— Sec. 470. Where
findings of fact are made, if they be objectionable
the party aggrieved must except to them in the
court where they are filed, for without such excep-
tion no review of the findings can be had on appeal ;
this is consonant with the general rule requiring an
exception for the review of any question by an ap-
pellate tribunal, and without the exception, error
is considered waived10. If an exception be not taken
4. Kuhlman v. Williams, 1 Okla. 136 ; 28 Pac. 867.
Sternberger v. Bernheimer, 121 N. Y. 194; 24 N. E. 811.
Ryan v. Fitzgerald, 87 Cal. 345 ; 25 Pac. 546.
Ranlerson v. Rockner, 17 Pla. 809.
Rawson v. Ellsworth, 13 Wash. 667 ; 43 Pac. 934.
Greenfield v. State, 113 Ind. 597 ; 15 N. E. 241.
Chapman v. White, 52 Mo. 179.
McNally v. Weld, 30 Minn. 209 ; 14 N. W. 895.
5. Josephi v. Mady Clo. Co., 13 Mont. 195; 33 Pac. 1.
Wright v. Mulvaney, 78 Wls. 89; 46 N. W. 1045.
Mack v. Leedle, 78 la. 164; 42 N. W. 636.
Baton v. Barnhill, 68 Miss. 305; 8 So. 849.
Headley v. Renner, 129 Pa. St. 542; 18 Atl. 549.
Roach v. Hulings, 16 Pet. 321 (U. S.).
Johnson v. Visher, 96 Cal. 314; 31 Pac. 106.
«. French v. Hotchkiss, 60 111. App. 580.
Halderman v. Birdsall, 14 Ind. 304.
7. Clapp v. Mass. Assoc., 146 Mass. 519 ; 16 N. E. 433.
Schwinger v. Raymond, 105 N. T. 648 ; 11 N. E. 592.
Couch v. Gentry, 113 Mo. 248 ; 20 S. W. 890.
Smith v. Pearson, 44 Minn. 397 ; 46 N. W. 849.
8. West. N. Co. v. Va. Paper Co., 87 Va. 418; 12 S. E. 755.
9. Brower v. Town Co., 84 Ga. 219 ; 10 S. E. 629.
Van Gorder v. Sherman, 81 la. 403; 46 N. W. 1087.
Schmitz v. St. Louis Co., 119 Mo. 256; 24 S. W. 472.
Flannagan v. Heath, 31 Neb. 776 ; 48 N. W. 904.
!•. Bassett v. Monte Christo, 15 Nev. 293.
Verdler v. Blgn, 16 Oreg. 208; 19 Pec. 64.
McLennan v. Prentice, 85 Wis. 427 ; 55 N. W. 764.
Schoonover v. Condon, 12 Wash. 475 ; 41 Pac. 196.
Packer v. Roberts, 140 111. 9; 29 N. E. 668.
Abernathy v. Withers, 99 N. Car. 520; 6 S. E. 878.
CIVIL PRACTICE. 463
in the trial court, the only question that can be
raised on appeal is whether the findings are con-
sistent with the judgment11. A waiver of error or
defects in findings occurs by failure of the com-
plaining party to except, whether the findings be
unsupported by the evidence12, or there be an omis-
sion to find as to an issue made by the pleadings13,
or upon a particular question of fact14, or whether
the findings be indefinite, uncertain and incom-
plete15.
10. NEW TRIAL:— Sec. 471. A motion for a
new trial must set out the errors or irregularities
constituting the grounds upon which a new trial is
asked. These must be pointed out clearly and spe-
cifically as the object or office of the motion is to call
to the attention of the trial court in the first in-
stance and to the appellate court on review the mat-
ters relied on by the movant as error entitling him
to another trial, to the end that the trial court may
11. Atch. Ry. Co. v. Scaggs, 64 Kans. 561 ; 67 Pac. 1103.
Oallahan v. James, 141 Cal. 291 ; 74 Pac. 853.
Upton v. Weisling, 8 Ariz. 298 ; 71 Pac. 917.
First Nat B. v. Citiz. Bank, 11 Wyo. 32 ; 70 Pac. 726 ; 100 A. S.
R. 925.
U. S. Mtg. Co. v. Marquam, 41 Oreg. 391 ; 69 Pac. 37.
Spencer v. Com. Co., 36 Wash. 374; 78 Pac. 914.
Sankville v. Grafton, 68 Wis. 192; 31 N. W. 719.
12. Wagner v. Marht, 32 Wash. 542 ; 73 Pac. 675.
Brand v. Merritt, 15 Colo. 286 ; 25 Pac. 175.
Waterhouse v. Black, 87 la. 317; 54 N. W. 342.
Tuomey v. Willman, 43 Neb. 28; 61 N. W. 126.
Joyner v. Stancill, 108 N. Car. 153; 12 S. E. 912.
Winterburn v. Chambers, 91 Cal. 170 ; 27 Pac. 658.
Allen v. Hutchinson, 45 Wis. 259.
Haws v. Victoria Co., 160 U. S. 303.
13. Merrill v. Chapman, 34 Cal. 251.
Ashmead v. Reynolds, 134 Ind. 139; 33 N. E. 763.
14. Sharp v. Wright, 35 Barb. 236.
Heroy v. Kerr, 8 Bosw. 194 ; 21 How. Pr. 409.
16. Tackaberry v. Bank, 85 Tex. 488 ; 22 S. W. 151 and 299.
Cummings v. Rogers, 37 Minn. 317; 30 N. W. 892.
State v. Mining Co., 4 Nev. 318.
464 THE LAW OF WAIVER.
have an opportunity to correct its erroneous pro-
ceedings, or that the appellate court may intelligent-
ly pass upon the proceedings of the court below16.
Any grounds that might have been set out but were
not will be considered waived and cannot be urged
either in the lower court or on appeal17.
Sec. 472. If a party file a proper motion for a
new trial and set out therein specifically and clearly
all the grounds desired to be relied upon as error
in the trial of the cause, he will yet be held to have
waived not only his motion but any error of the
court upon which his motion was predicated if he
fail to except to the ruling of the court denying his
motion. This is necessarily so under the general
rule that an objection and exception in erroneous
proceedings are complements of each other, in that
each must be added to the other in order to form a
complete record for review18. And in the case of a
motion for a new trial, the motion itself is the ob-
jection, and an adverse ruling thereon must be ex-
cepted to or the movant will be held to have been
16. Powell v. Palmer, 45 Mo. App. 236.
Lyons v. Van Gorder, 77 la. 600 ; 42 N. W. 500.
Stewart v. Scott, 67 Ark. 153; 20 S. W. 10"''.
Emery v. Real Est. Exc., 88 Ga. 321 ; 14 S. E. 566.
17. Miller v. State, 3 Wyo. 657; 29 Pac. 136.
Hintz v. Granpner, 138 111. 159 ; 27 N. E. 935.
Barney v. Scherling, 40 Miss. 320.
Gray v. Gwinn, 30 Ind. 409.
Territory v. Anderson, 4 N. M. 213 ; 13 Pac. 21.
18. Knop v. Ins. Co., 101 Mich. 359; 59 N. W. 653.
Taylor v. Switzer, 110 Mo. 410; 19 S. W. 735.
U. S. v. De Amador, 6 N. Mex. 173; 27 Pac. 488.
Cogshall v. Spurry, 47 Kans. 448; 28 Pac. 154.
Vaughn Lbr. Co. v. Mo. etc. Co., 3 Okla. 174; 41 Pac. 81.
State v. Rollins, 31 W. Va. 363.
Augusta Ry. v. Andrews, 89 Ga. 653 ; 16 S. E. 203.
Moss v. Smith, 19 Ark. 683.
Dan forth v. Lindell etc. Co., 123 Mo. 196; 27 S. W. 715.
CIVIL PRACTICE. 465
satisfied with the ruling and to have acquiesced
therein19.
11. WAIVER IN APPELLATE PEACTICE :
— Sec. 473. In the previous sections of this chapter
we have considered the matters which will not re-
ceive attention from an appellate court unless
proper foundation is laid in the trial court by way
of pleadings or proper and timely objections and
exceptions to evidence or other matters of practice.
It only remains to mention a few matters of prac-
tice pertaining strictly to the appellate court.
Sec. 474. Thus, it is necessary in order for a
party to obtain a review of any alleged erroneous
procedure that he should present to the court an as-
signment of error specifying the grounds relied
upon for a reversal. And unless the assignment
is made, the appellee has the right to have the
appeal dismissed. But to do this, he must move
for the dismissal at the proper time ; for it is said
that the objection that no assignment of errors has
been made and filed on appeal, not raised until
after argument in the appellate court, comes too
late and must be held waived20. But the assign-
ment of error must be made in accordance with the
rules of court, and if not so made, will not be
noticed by the court21. And even where the assign-
ments are properly made the party assigning
them must urge them in the appellate court, for by
19. Mausur v. Churchman, 84 Ind. 578.
Fletcher v. Waring, 137 111. 159.
Grady v. Jeftares, 25 Fla. 743; 6 So. 828.
Roach v. Blakey, 89 Va. 767; 17 S. E. 228.
State v. Boyce, 39 La. Ann. 229; 1 So. 450.
20. Smith v. Hill, 83 la. 684; 49 N. W. 1043; 32 A. S. R. 829.
Andrews v. Burdick, 62 la. 714 ; 16 N. W. 275.
21. Martin v. Jackson, 27 Pa. St. 504; 67 A. D. 489.
466 THE LAW OF WAIVEB.
failing to insist upon an assignment in argument
before the court, he must be held to have waived
it22. And an assignment properly made but not
mentioned in appellant's brief will be held
waived23. The assignment must contain all the
errors relied on by appellant for reversal, for the
appellate court will not notice errors not assigned.
Sec. 475. Practically the whole effect of a
waiver in matters of practice is to preclude a
party from taking a different position in the su-
perior court from that taken by him in the court
below, or from taking advantage of some right on
appeal that he had, by his conduct in the trial
court, induced the court or the opposing party to
believe would not be asserted by him. But there
are matters to be noticed which constitute a bar
to a party's right to appeal at all.
A. WAIVER OF EIGHT TO APPEAL—
(1) FEOM CONSENT JUDGMENTS :— Sec.
476. Parties to a civil action have the right to
consent or agree to any kind of judgment they de-
sire, provided no question of public policy is in-
volved or the rights of third parties are not af-
fected. And where such a judgment is entered, no
question of fraud arising, any errors in the action
theretofore existing are cured and the judgment
ends all contention between the parties. After
such consent, nothing remains for the court to do
but to enter the judgment the parties have agreed
upon, and the parties themselves are thereby pre-
22. Arnold v. Arnold, 124 Ala. 650; 27 So. 465; 82 A. S. R. 199.
Ward v. Hood, 124 Ala. 570; 27 So. 245; 82 A. S. R. 205.
23. Johnson v. Schlosser, 146 Ind. 509 ; 45 N. E. 702 ; 36 L. R. A. 59.
Ferguson v. Wilson, 122 Mich. 97; 80 N. W. 100G ; 80 A. S. R
543.
Black v. Dawson, 82 Mich. 485 ; 46 N. W. 793.
CIVIL PEACTICE. 467
eluded24. And from such judgment there is no ap-
peal. The parties have by their consent waived
any error and right to appeal25. And the same is
true where the parties have stipulated that the judg-
ment shall be final26. The reason is that in the ap-
pellate court, as well as in the trial court, there must
be some real issue or controversy, for where there
is no controversy, there can be no appeal27. And
where the controversy has been ended by any acts
of the parties themselves, the right to appeal is
waived28, as where the cause of action has been set-
tled29. And where a party has the right to either
prosecute a suit to review a judgment or to appeal
therefrom, he waives the right to appeal by prose-
cuting his suit to review30.
(2) BY PAYING JUDGMENT :— Sec. 477.
There are cases holding that payment of judgment
extinguishes it and that there is then nothing to
appeal from. Consequently the holding of these
24. Rader v. Barr, 22 Oreg. 496; 29 Pac. 889.
Schmidt v. Mining Co., 28 Oreg. 9 ; 40 Pac. 406 and 1016 ; 62
A. S. R. 759.
Duncan v. Hartwell, 9 Tex. 495 ; 60 A. D. 176.
Stephens v. Bicknell, 27 111. 444; 81 A. D. 242.
25. Schmidt v. Mining Co., 28 Oreg. 9 ; 40 Pac. 406 and 1016 ; 52
A. S. R. 759.
Beach; Modern Eq. Pr. Sec. 795.
Armstrong v. Cooper, 11 111. 540.
26. Townsend v. Stone Co., 15 N. Y. 587.
27. Little v. Bowers, 134 U. S. 547.
Nunan v. Valentine, 83 Cal. 588 ; 23 Pac. 713.
Treat v. Hiles, 77 Wis. 475; 44 N. W. 1088.
State v. Westmoreland, 29 S. Car. 1 ; 6 S. E. 847.
Hintrager v. Mahoney, 78 la. 537 ; 43 N. W. 522 ; 6 L. R. A. 50.
28. State v. Kans. City, etc., 97 Mo. 331; 10 S. W. 855.
County v. So. Pac. Ry., 116 U. S. 138.
29. Monnett v. Hemphill, 110 Ind. 299 ; 11 N. E. 230.
Wood, etc. v. Heft, 8 Wall. 333.
Cartwright v. Howe, 1 How. 188 (U. S.).
30. Masonic Co. v. Commonwealth, 87 Ky. 349 ; 12 S. W. 145.
New Orleans Co. v. Crescent Co., 33 La. Ann. 934.
Harvey v. Fink, 111 Ind. 249 ; 12 N. E. 396.
468 THE LAW OF WAIVER.
courts is that a voluntary payment of a judgment is
a waiver of the right to appeal from it, and that an
appeal taken or pending at the time of payment
is void and may be dismissed on motion31. But
these cases are not in line with the weight of
authority which is to the effect that a judgment
defendant does not waive his right to appeal by
paying the judgment either before or after taking
his appeal. It being immaterial whether such pay-
ment is voluntary or after execution has been is-
sued and served upon him32. A contrary rule
would often result in injury to a judgment defend-
ant, while the rule stated can produce injury to
neither party.
Sec. 478. Payment by a judgment defendant
is often necessary in order to save his property
from sacrifice, and what he does to save his prop-
erty under a judgment should in no manner pre-
clude him from attacking the judgment. As has
been said: "Suppose a judgment has been ren-
dered against a party and he cannot give security
to supersede its enforcement while he prosecutes
his appeal, and an execution is therefore issued,
and his property is about to be sold under it — his
homestead, it may be. Now can it be claimed that
if he shall pay off the judgment he is thereby de-
prived of an appeal? Surely this cannot be the
law"33. And this is the principle upon which the
31. State v. Conkling, 54 Kans. 108; 37 Pac. 992; 45 A. S. R. 270.
Sager v. Moy, 15 R. I. 528 ; 9 Atl. 847.
Morton v. Superior Court, 65 Cal. 496; 4 Pac. 489.
32. Grim v. Semple, 39 la. 570.
Mayor, etc. v. Riker, 38 N. J. L. 225; 20 A. R. 386.
Richeson v. Ryan, 14 111. 74 ; 56 A. D. 493.
2 Freeman, Judgments, Sec. 480a.
Belton v. Smith, 45 Ind. 291.
Hayes v. Nourse, 107 N. Y. 577; 14 N. E. 508; 1 A. S. R. 891.
33. Grim v. Semple, 39 la. 570.
CIVIL PRACTICE. 469
doctrine is usually announced34. Thus, a party
does not lose his right to appeal by complying with
a decree in equity35, executing a conveyance in ac-
cordance with a decree36, or by otherwise doing
what the judgment or decree required.
(3) BY ACCEPTING BENEFITS OF
JUDGMENT :— Sec. 479. A different rule obtains
where an attempt to appeal is made by a judgment
plaintiff. In such case, the rule is that a party
who accepts the benefits of a judgment waives his
right to appeal from it37. The reason is that when
a judgment is satisfied it has passed beyond re-
view; for the satisfaction thereof is the last act
and end of the proceeding. Payment produces a
permanent and irrevocable discharge; after which
the judgment cannot be restored by any subsequent
agreement nor kept on foot to cover new and dis-
tinct engagements38.
Sec. 480. But the rule is not without qualifi-
cation and exceptions. Thus, it is said that the
right to take an appeal is not waived by accepting
34. Factors Co. v- New Harbor Co., 37 La. Ann. 233.
Bruce v. Smith, 44 Ind. 1.
Edwards v. Perkens, 7 Oreg. 149.
Kelly v. Bloom, 17 Abb. Pr. 229.
Burrows v. Micklin, 22 Fla. 677.
Chapman v. Button, 68 Wis. 657 ; 32 N. W. 683.
35. Peer v. Cookerow, 14 N. J. Eq. 361.
County Com. v. Johnson, 21 Fla. 577.
36. O'Hara v. MacConnell, 93 TJ. S. 150.
37. Ullery v. Clark, 18 Pa. St. 148.
McCracken v. Cabell, 120 Ind. 266; 22 N. E. 136.
Smith v. Coleman, 77 Wis. 343; 46 N. W. 664.
Stinson v. O'Neal, 32 La. Ann. 947.
Paine v. Wooley, 80 Ky. 568.
38. Freeman on Judgments, Sec. 466.
Cassell v. Fagin, 11 Mo. 208 ; 47 A. D. 151.
Portland Co. v. O'Neil, 24 Oreg. 54 ; 32 Pac. 764.
Bolen v. Cumby, 53 Ark. 514; 14 S. W. 926.
Alexander v. Alexander, 104 N. Y. 643 ; 10 N. E. 37.
470 THE LAW OF WAIVER.
payment of a judgment where the error in it re-
spects the computation of interest and was not
known to the plaintiff when he accepted pay-
ment89. And it is stated that it is the possibility
that the appeal by a plaintiff from a judgment of
which he has received the benefits may lead to a
result showing that he was not entitled to what he
has received under the judgment appealed from
that defeats his right to appeal; consequently,
where there is no such possibility, his right to ap-
peal is unaffected by acceptance of benefits under
the judgment appealed from40. And if it is possi-
ble for him to obtain a more favorable judgment
in the appellate court without the risk of a less
favorable one from a new trial of the whole case
there or in the lower court, then the acceptance of
what the judgment gives him is not inconsistent
with an appeal for the sole purpose of securing,
without a re-trial of the whole case, a decision more
favorable to himself41.
Sec. 481. The rule holding a judgment plain-
tiff to have waived his right to appeal by accept-
ing benefits under the judgment is equally applica-
ble to cases where he sues out execution to enforce
the judgment, for he thereby elects to take it as it
39. Jackson v. City, 182 Mass. 26; 64 N. E. 418; 94 A. S. R. 635.
40. Tyler v. Shea, 4 N. Dak. 377; 61 N. W. 468; 60 A. S. R. 660.
citing :
Reynes v. Dumont, 130 U. S. 354.
Mellen v. Mellen, 137 N. Y. 606 ; 33 N. E. 545.
Morrlss v. Garland, 78 Va. 215.
Upton Mfg. Co. v. Hulske, 69 la. 557 ; 29 N. W. 621.
41. Id. And see:
Monnett v. Merz, 131 N. Y. 646 ; 30 N. E. 866.
Tarleton v. Goldthwaite, 23 Ala. 346 ; 58 A. D. 296.
Meaders v. Gray, 60 Miss. 400 ; 45 A. R. 414.
Clift v. Wade, 51 Tex. 15.
CIVIL PRACTICE. 471
was rendered42. And a party cannot avail himself
of the fruits of that part of a judgment favorable
to him, and then by appeal seek to reverse such
portions as militate against him43.
The rules applicable to a judgment plaintiff
attempting to appeal from a judgment of which he
has accepted the benefits obtain with equal force
where judgment was in favor of the defendant and
he attempts to appeal therefrom. In such case he
is held to have waived his right to appeal by en-
forcing the provisions of the judgment44.
B. NOTICE OF APPEAL:— Sec. 482. One
entitled to notice of appeal may waive such notice
and submit the cause without it, or he may waive
defects or irregularities in same. Where the ap-
pellate court has jurisdiction of the subject-mat-
ter, a voluntary appearance by the respondent, and
taking steps in the appellate court constitute a
waiver of mere irregularities in the service of no-
tice of appeal45, and such irregularities are waived
by a submission without objection46. But a sub-
mission will not be a waiver where no notice at all
was given47; although it is said that an implied
waiver of notice will be held where there is an ap-
42. Hall v. Lacy, 37 Pa. St 366.
Knapp v. Brown, 45 N.. T. 207.
43. Holt v. Rees, 46 111. 181.
Webster, etc. Co. v. St. Crolx Co., 71 Wls. 317 ; 36 N. W. 864.
44. Bennett v. Van Syckel, 13 N. T. 481.
45. Holden v. Haserodt, 2 S. Dak. 220 ; 49 N. W. 97.
Cleveland Ry. v. Mara, 26 Oh. St. 185.
Hohmann v. Eiterman, 83 111. 92.
46. Benson v. Carrier, 28 S. Car. 119 ; 5 S. E. 272.
Guarantee Co. v. Buddin&ton, 23 Fla. 514 ; 2 So. 885.
Richardson v. Green, 130 U. S. 104.
Chicago Co. v. Abilene Co., 42 Kans. 104; 21 Pac. 1112.
Cain v. Goda, 94 Ind. 555.
47. Burkam v. McElfresh, 88 Ind. 223.
472 THE LAW OF WAIVER.
pearance and a brief upon the merits filed by the
respondent48.
48. Bates v. Scott, 26 Mo. App. 428.
Robertson v. O'Riley, 14 Colo. 441; 24 Pac. 660.
Wilson v. Zeigler, 44 Tex. 657.
Schmidt v. Wright, 88 Ind. 56.
INDEX
[References are to sections.]
ABANDONMENT:
Of Contract, entitled to compensation, 17.
If willful, 17; 27.
Of Right, without knowledge of the facts, 70.
Waiver is voluntary, of right, 1.
Of one remedy to follow another, 65.
Of Contract, in rescission, 66.
Of Execution, now waiver of chattel mortgage, 116.
Of Mortgage, by execution, 123.
Of Mortgage, hy taking other security, 126.
by attachment, 127.
by delay in enforcing, 128.
Agreement for, of entry to foreclose, 139.
Collateral security is, of mechanic's lien, 166.
Of business, waives exemptions, 185.
ABSCONDING:
Of Maker of note, 78.
ACCEPTANCE:
Of Part Performance of contract, 12.
Waiver right to object to performance, 12.
Must be with knowledge of facts, 12.
Knowledge imputed from circumstances, 12.
Is waiver of defects, 12, 19, 21.
Not a waiver if involuntary, 13, 14, 45.
or of latent defects, 14.
Of personal property after inspection, a waiver, 15.
Damages not waived by, 15, 21.
Renders liability fixed, 17.
Under severable contract, liable 20.
Of part payment as waiver of time, 40, 41, 45.
waives right to rescind, 40.
Failure of, of offer of arbitration, 42.
Of tender, refusal on one ground, waiver of others, 47.
Refusal of, tender not necessary, 47.
Tender waived by, 50.
Uncommunicated intention not to accept tender, 51.
Of rent, by landlord, waives forfeiture, 53.
Of benefit, waiver of breach of condition for support, 55.
Of payment, waives forfeiture, 56.
Of rent, waives default of tenant, 62.
no waiver of future default, 63.
Of rent from sub-lessee, 64.
Of part of interest, by mortgagee, 132, 133, 134.
Of surplus from foreclosure sale, 146.
Whether, of note waives mechanic's lien, 158, 159, 162.
note of a third person, 160, 162.
of draft as waiver, 163.
of mortgage as waiver, 164.
Of payment of mortgage by conveyance, waiver redemption,
207.
(473)
474 INDEX.
[References are to sections.]
ACTION:
Right of, barred, 220.
ACQUIESCENCE:
By landlord, in delay in paying rent, 62.
Rescission waived by, 70.
Waives right to redeem, 211,212.
Forfeiture of corporate shares waived by, 248.
ACKNOWLEDGMENT :
Of debt, as waiver of statute of limitations, 219.
requisites of 220, 221.
part payment as, 224.
must be voluntary, 224.
payment of interest as, 224.
ADDITIONAL INSURANCE:
Waiver of condition against, 273.
Oral waiver of condition by agent, 299, 301, 302.
Waived by treating policy as in force, 299.
Consent to, endorsed on policy, 300.
No objection by insurer, 301, 302.
Silence of insurer, 301, 302, 303.
Oral waiver, 302.
Failing to endorse consent on policy, 303.
to cancel policy, 303.
Collecting premiums, 303.
Failing to notify insured of forfeiture, 303.
ADMISSION:
(See: Evidence; Practice.)
AGENT; AGENTS:
Waiver may be by, 5.
except of personal right, 6.
Must have authority, 5.
Mechanic's liens waived by, 171.
Insurers must act by, 262.
circumscribing powers of, 262, 263.
general rules of agency applicable, 263.
may waive conditions, 265.
general and special, 266, 270.
powers of, 266.
knowledge of, is knowledge of insurer, 266.
as agent of insured, 266, 267, 268.
acts of, questioned by insurer, 266.
held out as such by insurer, 267.
who are, 269.
what constitutes, 269.
restrictions on authority of, 269, 270.
officers as, 270.
knowledge of insured of limitations on authority of, 271.
whether clerks are, 272, 273.
sub-agents, powers of, 272.
countersigning policies, 272.
ratifying act of sub-agent, 272.
INDEX. 475
[References are to sections.]
waiving acts prohibited by charter, 274, 275.
knowledge of, as to title, 279.
is knowledge of insurer, 281.
failing to mention encumbrances, as waiver of condition,
282.
knowledge of encumbrances, 282.
of prior insurance, 287.
of "iron-safe" provision, 289, 290.
of change of title, 291, 292.
of subsequent encumbrances, 295, 296.
whether may waive mis-use of premises after delivery of
policy, 297, 298.
additional insurance, 299, 301.
waived orally by, 301, 302.
collection of premiums by, 304.
waiving prepayment of, 304.
by delivery of policy without collecting, 305.
by giving credit, 305, 306.
by custom, 306.
by extending time, 308.
by conduct, 308.
by accepting past-due payment, 308, 309.
authority of, to waive time of payment of premiums,
310, 311.
to waive cash payment, 314.
to endorse waiver on policy, 317, 318.
to waive notice of loss, 321, 324.
to waive proofs of loss, 325, 335, 336.
to waive proofs orally, 337, 338.
AGREEMENT; AGREEMENTS:
Concurrent, to waive exemptions, 183.
is against public policy, 183.
by head of family, 183, 184.
by single man, 184.
to turn over exempt property, 186.
In mortgage, to waive redemption, 200.
Parol, to waive redemption, 209, 213.
To waive statute of limitations, 216.
ANSWER; ANSWERS:
To merits, waives process, 353.
Is appearance, 354.
To contest merits, sufficient as appearance, 356.
Waives service of process, 358.
After objection to process, no waiver, 358.
After overruling of demurrer, 373.
held waiver of defects, 373.
contra, 374.
No waiver of mis-joinder of parties, 375,
As waiver of objections to venue, 380, 381.
476 INDEX.
[References are to sections.]
APPEAL:
Statute of frauds first raised on, 181.
Defects in complaint not first raised on, 370.
Mis-joinder of parties, first raised on, 375.
Objections necessary for, of any matter, 426, 427.
Special objection not permitted on, 432.
exceptions to rule, 438.
Questions raised on, without objection, 438.
Exceptions essential to, 441.
must specify ruling, 441, 442.
to each ruling, 443.
to exclusion of evidence, 443.
must be specific, 443.
when taken, 443.
to admission of evidence, 444.
to ruling on non-suit, 451.
Instructions on, error in must be objected to, 457.
oral, objection to 459.
given, must be excepted to, 460.
exception must point out defect, 461.
general exception insufficient, 462.
omitted, must be requested, 463.
otherwise waived, 463.
exceptions presumed on appeal, 468.
taken after verdict, 468.
Verdict, objection to, on, 469.
Practice on, 473, et seq.
assignment of errors to be filed, 474.
without, appeal dismissed, 474.
filing of assignment waived, 474.
assignment not urged, waived, 474.
not mentioned in brief, 474.
must contain all errors, 474.
Effect of waiver on, 475.
Waiver of right to appeal, 476.
from consent judgment, 476.
After payment of judgment, 477.
contra, 477.
After complying with decree, 478.
After accepting benefits of judgment, 479, 481.
contra, 480.
After issuing execution, 481.
Notice of, waiver of, 482.
defects in waived, 482.
appearance waives, 482.
filing brief waives, 482.
APPEARANCE:
Attorney not to enter, without authority, 6.
Guardian cannot enter for infant, 10.
General, waives process, 352.
Waives defects in process, 353.
Waives defects in service of process, 352, S63.
Special, not a waiver, 353.
Piling answer or demurrer is, 354.
Must be real, 356.
INDEX. 477
[References are to sections.]
For contesting merits, sufficient, 356.
Illustrations of, 357.
After judgment, 359.
Waives mis-nomer, 360.
By attorney, 361, 365.
Special, no waiver of process or defects, 362, 363.
what is, 363, 364.
Under protest, 364.
Cannot confer jurisdiction over subject-matter, 367.
By accused, gives jurisdiction over, 386.
APPLICATION: (See: Insurance)
For Insurance, provisions in, 266.
making agent representative of insured, 266, 267.
statements in unknown to applicant, 267.
as to title, 279, 280, 281.
oral, without disclosing encumbrances, 282.
failure to disclose prior insurance, 287.
ARBITRATION:
Waived by failure to accept offer of, 42.
Agreement for, waiving mechanic's liens, 170.
As condition of recovery by insured, 339.
May be waived by conduct, 339.
by refusal to pay, 340.
by denial of liability, 340.
by refusing request for, 340.
Cannot divest courts of jurisdiction, 369.
ARREARS:
Payments in, acceptance of, 40.
Rent in, payment of, 54.
Interest in, payment by indorser waives demand, 9(5.
Right to foreclose, waived by payments of, 132.
ASSESSMENTS:
Not levied till conditions performed, 227.
Payment of, waiver of conditions, 230, 232.
What are, 245.
Irregularities in, effect of, 245.
waived, how 245.
waiver by ratification, 245.
participating in levying, 245.
Forfeiture of shares for non-payment of, 246.
waiver of by delay, 246.
enforcing, waives right to sue, 247.
irregularity in, waived, 248.
by acquiescence, 248.
ASSIGNMENT:
Taking, by endorser waives demand and protest, 97, 99, lOi
To endorser, between endorsement and maturity, 101.
After maturity, 102.
478 INDEX.
[References are to sections.]
ASSIGNEE:
Of mortgage, right to waive entry, 140.
Of corporate shares, 249.
Recognizing, by corporation, 256.
ASSIGNMENT OF ERRORS:
(See: APPEAL)
ATTACHMENT:
Waives right to rescind, 68.
Of goods, waives fraud in sale of, 68.
An affirmance of voidable contract, 68.
Lien of chattel mortgage waived by, 112.
Equity of redemption not subject to, 112.
Of property in custody of law, 114.
Mortgage held not waived by, 115.
Of proceeds of sale of mortgaged property, 117.
On real estate, waiver of mortgage, 127.
Of goods, waives carrier's lien, 151.
Whether waiver of mechanic's lien, 169.
of vendor's lien, 174.
Of exempt property, 185.
Traversing, where property exempt, 186.
Defects in affidavit, 382.
fatal, if taken advantage of, 382.
traversing, waiver of 382.
Want of affidavit never waived, 382.
Defects in writ, 383.
must be set up by defendant, 383.
appearance without objecting, a waiver, 383.
waived by executing re-delivery bond, 383.
contra, 383.
other acts amounting to waiver of, 383.
Lien of, between plaintiff and defendant, 384.
irregularities in, 385.
instances of waiver of, 385.
ATTORNEY; ATTORNEYS:
May waive client's rights if authorized, 6.
Has full authority as to matters of practice, 8.
Governed by rules of agency, 6.
Merely representative in court, 6.
Cannot enter appearance, 6.
Cannot waive process for infants, 11.
Lien of against judgment, for fees, 155.
waived by taking other security, 155.
not by delay in enforcing, 155.
nor by taking note, 155.
conduct amounting to waiver of, 156.
And client, communications between, 191.
by partner, 191.
waived by conduct, 191, 192.
by signing will, 192.
by signing mortgage, 192.
waiver of may be oral, 193.
elient becoming witness, waives privilege, 195.
INDEX. 479
[References are to sections.]
May waive privilege of patient, between physician & patient,
196.
Appearance by, sufficient to waive process, 361, 365.
Cannot waive right of accused to be present at trial, 406.
BILLS & NOTES:
Waiver of presentment, protest and notice, 74.
Indorsement implies knowledge of contents of instrument, 74.
Waiver of presentment, etc. in endorsement, 75.
after indorsement of instrument, 78.
Waiver of presentment by asking time, 78, 84, 87.
at maturity of instrument, 79.
by admitting liability, 79, 80.
New promise by endorser to pay, 81, 89.
Failure of presentment, etc. no defense when waived, 82.
Offer to pay part, unaccepted, 85.
Knowledge of lack of presentment, presumed, 90, 91.
Paying interest waives demand and protest, 96.
Indorser of, taking security, 97 to 102.
Consideration for waivers in, 104, et seq.
Waivers in, statute of frauds affecting, 109.
Mortgage secures, 118.
Mechanic's liens, waiver of by taking, 158.
Whether are collateral security, 167.
As waiver of vendor's lien, 172, 173.
Waiver of exemptions in, 184.
BREACH:
Of Contract, willful, no recovery, 19.
recovery though willful, 17.
Waived by proceeding under contract, 22, 56.
As to time, waived by directing 'changes, 44.
Of condition for future support, 55.
Of condition subsequent, waiver of, 58.
Once waived, not revived, 58.
Of conditions in mortgages, 131, 132.
for payment of interest, 132.
Of condition, waived by delivery of policy of insurance, 277.
by silence of insurer, 278.
as to title, waived by delivery of policy, 279, 281, 291.
against encumbrances, waiver by insurer, 282.
by failure to make inquiry, 282.
by agent's failing to mention, 282.
by delivering policy, 282.
by receipt of premiums, 282, 284.
against vacancy, waiver of, 285.
BUILDINGS:
Acceptance, if involuntary, no waiver of defects in, 14, 15, 45.
nor if defects not discoverable, 23.
Time, in contracts for, waiver of, 43.
BURDEN OF PROOF:
Presumption shifts, 81.
To show laches of holder, on endorser, 91.
contra, 93.
Of showing waiver of vendor's lien, on vendee, 174.
480 INDEX.
[References are to sections.]
BY-LAWS:
What are, 239.
Whether acts contrary to, void, 239.
Waiver of, 239.
by officers, 239.
by insurer issuing policy, 239.
Of insurer, waiver of, 276.
CARRIERS:
Have no property rights in goods carried, 149.
Lien of, depends on possession, 148.
lost by surrender of possession, 150.
must be voluntary, 150.
waived by conduct, 150.
not lost by surrender of possession if conditional, 150.
waived by attaching goods, 151.
by levying execution, 151.
by giving credit, 152.
by taking security, 152.
CHARTER:
Right of state to cancel, 258, et seq.
belongs exclusively to state, 258.
upon breach of condition, 258.
waived by permitting corporation to continue, 258.
waiver of, question of intention, 258.
illustrations of, 259, 260.
cases where right not waived, 261.
Of insurance company, 274, et seq.,
waiver of acts prohibited by, 274.
acting contrary to, fraud, 275.
CHATTEL MORTGAGES:
Lien of, waived by attachment, 112, 114.
inconsistent with attachment, 112.
Legal title under, 112.
By attachment of property In custody of law, 114.
Lien held not lost by attachment, 115.
Lien of, waived by levying execution, 116.
not where execution abandoned, 116.
Attachment of proceeds of sale of property, 117.
Waiver of lien by attempted sale, 117.
As waiver of mechanic's lien, 167.
CLERKS:
Of insurance agents, as agents of insurer, 272, et
whether represent insurer, 272.
without knowledge of insurer, 272.
CLIENT:
Communication between, and attorney, 191.
waiver of by administrator, 191.
may be waived orally, 193.
becoming witness as waiver of, 195.
INDEX. 481
[References are to sections.]
COLLATERAL. SECURITY:
Offer to give, no waiver of presentment and protest, 88.
Taking, as waiver of mechanic's lien, 164, 166.
intention of parties to govern, 166.
not inconsistent with lien, 166.
What is collateral security, 167.
As waiver of vendor's lien, 172, 173.
COMPETENCY:
(See: Witness; Objection; Evidence.)
COMPLAINT; COMPLAINTS:
Defects in, to be insisted on by defendant, 370.
otherwise waived, 370.
raised by motion or demurrer, 370.
not first raised on appeal, 370.
not waived by demanding bill of particulars, 371.
nor by failure to demur, 371.
nor by submitting demurrer without argument, 371.
waived by pleading to merits, 371.
by answering after overruling of demurrer, 373.
held waiver of defects, 373.
contra, 374.
COMMUNICATIONS, PRIVILEGED:
Giving evidence of, 190.
Between attorney and client, 191.
waived by administrator, 191.
by partner, 191.
by conduct, 191, 192, 193.
by signing will, 192.
by signing mortgage, 192.
waiver of, may be oral, 193.
facts amounting to, 194.
client becoming witness, 195.
Between physician and patient, 196.
waiver of, by attorney, 196.
by assignee, 196.
by heir-at-law, 196.
by guardian, 196.
waived by implication, 197.
calling physician as witness, 197.
failing to object to testimony, 197.
patient testifying, 197.
waived by other acts, 197.
Between husband and wife, 198.
statutory provisions for, 198.
waiver by acts of parties, 198.
CONDITION; CONDITIONS:
Breach of, for support, 55.
Promise on, must be accepted, 85.
Breach of, in mortgage, 131.
by failing to pay interest, 132.
Subscriptions to corporation on, 227.
no liability on, till performed, 227.
waived by subscriber, 228.
482 INDEX.
[References are to sections.]
by silence, 228.
by conduct, 230, 232.
by subscribing prior to incorporation, 230.
by paying for, 230, 232f
by part payment for, 231, 232.
In Insurance contracts, 264, et seq.
waiver of, forbidden, 264.
agents may waive, 265, 266, 270.
wbetber clerks of agents may waive, 272.
officers, power of to waive, 270.
sub-agents, powers of, 272.
waiver of, against additional insurance, 273.
breach of, prior to delivery of policy, 277.
waived by delivering policy, 277.
by silence of insurer, 278.
as to title, waiver of by insurer, 279, 291, 292.
by delivering policy, 279, 280.
by other conduct, 291.
as to encumbrances, waiver of by insurer, 282.
by failing to inquire, 282.
by agent's failure to mention, 282, 284.
by agent's advising not to mention, 282.
by issuing policy, 282, 284.
by receipt of premiums, 282.
as to vacancy of house, knowledge of, 285.
delivering policy waives, 285.
as to use of premises, waiver of, 286.
waived by delivering policy, 286.
as to prior insurance, waived by conduct, 287.
knowledge of by agent, 287, 288.
waived by taking premiums, 287, 288.
by delivering policy, 287, 288.
renders policy voidable, 287.
as to "iron-safe" requirement, 289, 290.
breach known by agent, 289.
waived by delivering policy, 289.
by other conduct. 289, 290.
by acquiesence, 290.
as to vacancy, after delivery of policy, 293.
whether waived by an agent, 293.
endorsing consent on policy, 293, 294.
not waived by silence, 294.
as to encumbrances, after delivery of policy, 295, 296.
waived by assent or conduct, 295, 296.
mis-use of premises subsequent to issue of policy, 297, 298.
not waived by silence of agent, 297, 298.
nor failure to cancel policy, 297.
additional insurance, waiver by agent, 299, 301.
by treating policy as still in force, 299, 302.
consent indorsed on policy, 300.
silence of insurer, 301, 302, 303.
oral waiver, 302.
failure to cancel policy, 303.
collecting premiums, 303.
forfeitures for breach of conditions, 315.
See: Premiums.
INDEX. 483
[References are to sections.]
CONDITIONAL SALE:
Of goods, waived by delivery without payment, 32, 33.
Title waived by giving credit, 34.
CONDITION PRECEDENT:
Strict performance, to payment, 18.
Payment as, to passing title, 33.
Waived by giving credit, 34.
Arbitration as, waived, 42.
CONDITIONS SUBSEQUENT:
Breach of, waived, 58.
By treating contract as in force after breach, 68.
Once waived, not revived, 58.
Breach of, waived by laches, 59.
No liquor to be sold on premises, 59.
Payment of rent by certain time, 60.
Breach of by tenant, landlord must act promptly, 60.
Permitting tenant to hold over, no waiver of breach of, 60.
Breach of, does not ipso facto terminate lease, 61.
Breach of, not waived by lease to another, 61.
Breach of, waived by accepting rent, 62.
not by receiving rent from assignee, 63.
not by accepting payment after a breach, 63.
For payment of taxes by tenant, 63.
CONDUCT:
Intention to waive time, shown by, 45.
If compulsory, no waiver, 45.
Tender, waiver of shown by, 46.
Showing tender would be refused, 47.
Mis-leading, waives forfeitures, 52, 54.
Of railroad, waiving forfeitures, 53.
Waiver may be by, 1.
Intention inferred from, 2.
Inconsistent, waiver by in bills and notes, 72.
Waiver implied from, 73.
Waiving presentment, protest, etc., 80, 81.
Of endorser, legal presumption from, 81.
Inconsistent, by mortgagee, waives lien, 123.
waives breach of condition, 131.
non-payment of interest, 132.
Waiving entry to foreclose, 137.
foreclosure sale, 141.
Waiving carrier's lien, 150.
Waiver of mechanic's lien by, 157, et seq.
Statute of frauds, waived by, 176.
Waiver of exemptions by, 185, et seq.
subsequent to making of debt, 185.
Waiver of privileged communications by, 191.
Waiver by, of redemption, 213.
of statute of limitations, 216.
of conditions in subscriptions to stock, 230, 232.
of defects in subscriptions, 235.
of irregularities in transfer of shares, 252.
484 INDEX.
[References are to sections.]
CONFIDENTIAL COMMUNICATIONS:
Giving evidence of, waiver by, 190.
Between attorney and client, 191.
Waiver by administrator of client, 191.
by partner, 191.
by conduct, 191.
by signing will, 192.
by signing mortgage, 192.
Waiver of may be oral, 193.
Facts waiving, 194.
Client becoming witness, 195.
Between physical and patient, 196.
waived by attorney, 196.
by assignee, 196.
by heir-at-law, 196.
by guardian, 196.
waiver of, by implication, 197.
calling physician as witness, 197.
failing to object, 197.
patient testifying, 197.
waived by other acts, 197.
Between husband and wife, 198.
statutory provision for, 198.
waived by testifying, 198.
by failing to object, 198.
by other acts, 198.
CONSIDERATION:
Must be restored In rescission, 66.
None essential to waiver, 4.
In executory promise, 4.
For waiver in bills and notes, 104.
none necessary, 104.
necessary if waiver after execution, 105.
For promise of endorser, to pay after discharge, 109.
For waiver of redemption, 206.
must be, 208, 213.
Whether, to waive statute of limitations, 216.
CONSTITUTION:
May prohibit waiver of exemptions, 182.
Guarantees jury trial, 394.
Prohibits second jeopardy, 389.
Jury trial not guaranteed by, in misdemeanors, 398.
Accused, protection of from self-crimination, 399.
Guarantees accused right to be present at trial, 404.
CONTRACTS:
Executory, defects in waived by acceptance, 15.
Substantial performance of, 16.
Abandonment of, entitled to compensation, 17.
if abandonment willful, 17, 27.
Default in caused by other party, no liability, 27.
Refusal to perform, 17.
Proceeding under, after breach, 22.
waiver, if with knowledge, 23.
INDEX. 485
[References are to sections.]
Preventing performance, a waiver, 25, 43.
contractor entitled to recover, 25.
Refunding payments received under, 26.
Impossibility of performance caused by one party, other not
liable, 28.
Demanding illegal performance, is prevention, 29.
or rendering self unable to perform, 29.
Refusing to treat contract as subsisting, 30.
refusal must be unequivocal, 31.
and acted on by other party, 31.
Time, as essence of, 35.
not in equity, 36, 37.
is, when so intended, 37.
may be waived, 39.
by part payment under contract, 40.
accepting part payment over-due, 40, 41.
waived, if delay caused by other party, 43.
Right to rescind, waived by acceptance, 40.
by extending time, 42.
Forfeiture under, is waived by acceptance, 40.
where not insisted on, 43.
Delay in performance caused by contractee, 44.
Breach of condition for future support, 56.
Induced by fraud, 65.
Action to enforce, waives rescission, 67.
Judgment on, waives fraud in, 67.
Voidable, waiver of, 68.
Proceeding under, waives right to rescind, 69, 71.
Receipts under, to be returned on rescission, 71.
Of infants, 8.
Infant must avoid in reasonable time, 8.
Of indorsement, 75.
Oral, pleading, 177, 178, 179.
Proof of, 177, 179.
Concurrent, to waive exemptions, 183.
against public policy, 183.
by single man, 184.
In mortgage, to waive redemption, 200.
Parol, to waive right to redeem, 209, 213.
Of subscription to shares of corporation, 227, et seq.,
fraud in, renders voidable, 237.
ratified by acquiescence, 237.
Of Insurance: (See: Insurance.)
Right to sue in tort or on implied, 343, 349, 350.
choice of one waives other, 343.
only where property converted into money, 343.
Fraud in, waiver of, 345.
Deceit in, waiver of, 346.
Election between, and tort, shown only by pleadings, 361.
Election between, and tort, results of, 351.
Plea of infancy in suits on, 351.
CONTRADICTORY:
Positions, not allowable, 65.
by mortgagee, 123.
486 INDEX.
[References are to sections.]
CONVERSION:
May waive tort, and sue for value in, 348, 349.
if property changed to money, 348.
CONVEYANCE:
Of property, as waiver of exemptions, 185.
Absolute, but mortgage in fact, redemption from, 203.
To mortgagee, waives right to redeem, 207.
CORPORATIONS:
Shares in, conditions in issue of, 227.
Conditions in shares waived by subscriber, 228, et seq.
must be with knowledge of rights, 228.
may be by silence, 228.
by conduct, 230.
by subscribing prior to incorporation, 230.
by paying calls, 230, 232.
by part payment, 231, 232.
by waiving notice of meeting, 231.
Fraud in subscriptions to, 233.
Waiver of defects in subscriptions to, 235.
irregularities in, 236.
Fraud makes subscriptions voidable, 237.
waived by acquiescence, 237.
by other acts, 238.
What are by-laws of, 239.
waiver of, 239.
by officers, 239.
Meetings of, to be regularly called, 241.
irregularities in, may be waived, 242.
must be by all members, 242.
waived by attendence, 242.
by subsequent ratification, 242.
notice of, cannot be waived, 243.
contra, 244.
Assessments of, what are, 245.
irregularities in, effect of, 245.
waived, how, 245.
by ratification, 245.
by participating in levying, 245.
Forfeiture of shares for non-payment, 246.
waiver of, by delay in enforcing, 246.
enforcing, waives right to sue, 247.
Irregularity in enforcing, waived, 248.
by acquiescence, 248.
Stock in, transfer of, must be on books, 249.
powers of assignor and assignee, 249.
irregularities in, waived by corporation, 250.
by recognizing assignee, 250, 251.
where legal title rests, 251.
consent of directors to, 252.
Lien on shares, how created, 253.
is waived if not asserted, 253, 254.
purchaser ignorant of, 254.
not waived by taking security, 254.
INDEX. 487
[References are to sections.!
by looking to personal liability of holder, 264.
certificate reciting fully paid, 255.
certificate should show lien, 256.
corporation bound by certificate, 256.
registration waives lien, 257.
waived by giving credit, 257.
Charter of, right of state to forfeit, 258.
waiver of right, 258.
Illustrations of waiver, 259, 260.
cases where right not waived, 261.
CRIMES; CRIMINAL LAW:
Plea of not guilty, statute of limitation relied on under, 226.
Statute of limitation, raised by special plea, 226.
waived unless taken advantage of on trial, 226.
and before verdict, 226.
Jurisdiction over accused, given by appearance, 386.
waived by pleas, 386.
Extradition, waived, 387.
Indictment stating no offense, 388.
cannot be waived by accused, 388.
Second jeopardy, constitutional guaranty against, 389.
asserted by special plea, or waived, 389.
not defense under general denial, 389.
new trial is waiver of, 390.
moving to set aside verdict, 390.
fraud in first trial, 392.
waives plea of, 392.
Right to jury trial, 394, et seq.
may be waived in misdeameanors, 394.
not in felonies, 394.
not entitled to at common law, 394.
number of jurors, 396, et seq.
in felonies, 397.
cannot be waived, 397.
nor consented to, 397.
Self-crimination, 399, et seq.
privilege not a bar to testifying, 399.
waived by testifying, 399.
how far a waiver, 400, 401.
cross-examination of accused, 400, 401.
Right of accused to be present at trial, 403, et seq.
crimes less than capital, 404.
right may be waived, 404.
waived by voluntary absence, 404.
in capital offenses, 405.
right cannnot be waived, 405.
attorney cannot waive right for accused, 406.
CRIMINATION OF SELF:
Constitutional protection of, 399.
not a bar to testifying, 399.
Privilege waived by testifying, 399.
how far waived, 400.
cross-examination of accused, how far, 400, 401.
accused treated same as other witnesses, 402.
488 INDEX.
[References are to sections.]
By witness, 420, et seq.
what is privilege, 420.
answers having tendency to criminate, 420.
privilege must be claimed, 421, 423.
when to be claimed, 422.
whether attorney may claim, 423.
extent of waiver of, 424.
testifying before grand jury as waiver of, 425.
before coroner's inquest, 425.
CROSS-EXAMINATION :
Of accused, how far, 400.
Not waiver of incompetency of witness, 419.
CUSTOM:
Waiver by, of presentment and protest, 73.
of defects in transfer of shares in corporation, 252.
Lien on shares of corporation created by, 253.
To receive payment of premiums after maturity, 312, 313.
DAMAGES:
Not waived by accepting defective machinery, 15, 23.
May be recovered for defects discovered after acceptance, 15.
For incomplete performance, 17.
After acceptance of defective articles, 21.
Not waived where objection made at time of acceptance, 21.
Waived, if inspection would disclose defects, 22.
Not recovered where performance prevented, 25.
Contractor prevented from performing may recover special,
26.
Liquidated, not liable if other party to blame for default, 43.
Waived, where time waived, 44.
From fraud, 66.
Waived, by ratification of fraudulent contract, 66.
unless fraud is unknown, 66.
Not waived by rescission, 67.
nor by sale of part of property, 71.
For false representations, not waived by keeping property,
345.
DECEIT:
Not waived by accepting payment of note, 345.
How waived, 346.
Action for, though contract performed, 347.
DEED:
Executing, waives forfeiture in land contract, 56.
Condition subsequent in, breach of, waived, 58.
Absolute in form, but mortgage in fact, 129.
agreement in, to waive redemption, 201, 202.
Of trust, right to redeem from, 204.
DEFAULT:
Under contract, waiver of, 22, et seq.
by proceeding after, 22, 24.
must be with knowledge, 23.
Waiver of, a question of intent, 24.
Caused by other party, no liability, 27.
INDEX. 489
[References are to sections.]
In payment for goods delivered, 34.
Party not In, entitled to damages, 38.
In performance of contract, waiver of, 39.
Waived by proceeding after time limit, 39.
by permitting other party to continue, 40.
Waived where performance prevented by other party, 43.
One party to blame for, other not liable to damages, 43.
Proceeding after, waiver of, 56.
In payment, waived, 56.
Delay in giving notice after, no waiver, 57.
Of tenant, not waived by landlord, 61.
In payment of rent, waived by acquiescence, 62.
Future, not waived, 63.
Judgment by, against infant, 18.
Not waived by unaccepted offer, 86.
Of holder of note or bill, not waived by endorser without
knowledge of facts, 88, 89.
waived by payment, 95.
Of mortgagor, in paying interest, 131, 132.
Of mortgagor, waived by conduct of mortgagee, 132, et seq.
Of mortgagor, in paying taxes or insurance, 135.
Judgment by, waives exemption from service, 366.
DEFECTS:
In performance of contract, 12, et seq.
must be discoverable from inspection, 12.
must be diligent to discover, 12.
not waived by acceptance if involuntary, 13.
Visible, waived by acceptance, 15.
Latent, not waived by acceptance, 15, 23.
nor by occupancy of building, 15.
Not objected to, waived, 22.
In foreclosure sale, waiver of, 145, et seq.
In subscription to stock of corporation, waiver of, 235.
In notice of loss under insurance policy, waived, 323.
In proofs of loss, waived, 329.
by objection on other grounds, 329.
In process, waiver of, 353.
Appearance, to waive, must be actual, 356.
Illustrations of appearance waiving, 357, 359.
In process, waived by going to trial, 358.
waived after judgment, 359.
not waived by special appearance, 362, 363, 364.
In complaint, must be insisted on by defendant, 370.
otherwise waived, 370.
In attachment proceedings: See: Attachment.
DEFENSE:
Failure of presentment no, where waived, 82.
Of statute of frauds, personal to defendant, 177, 178, 179.
must be pleaded by defendant, 178.
Statute of frauds as, on cross-bill, 181.
DEFENDANT:
Statute of frauds to be proved by, 177.
to be pleaded by, 177, 178, 181.
490 INDEX.
[References are to sections.]
Limitations, statute of, must be pleaded by, 225.
May waive process, 352.
General appearance of, See: Appearance.
Ignorant of defects in process, 354.
Process not waived by special appearance of, 364.
Answering after overruling of demurrer, 373.
held waiver of defects, 373.
contra, 374.
Mis-joinder, not waived by answering, 375.
Waiver by, of objections to venue, 379.
Jurisdiction over, in criminal prosecutions, 386.
waived by appearance or plea, 386.
Cannot waive jurisdiction over offense, 386.
Waiver of extradition by, 387.
Cannot waive failure of indictment to state offense, 388.
Not compelled to criminate self, 399.
privilege waived by taking stand, 399.
how far waiver extends, 400, 401.
treated same as other witnesses, 402.
In criminal case, right to be present at trial, 403.
waiver of right, 404.
in capital offenses, 405.
attorney cannot waive right for, 406.
DELAY:
Party not liable for, if other to blame, 43, 44.
In action on insurance policy, 43.
In claiming forfeiture, waiver of, 55.
In giving notice after default, no waiver, 57.
In paying rent, acquiesced in by landlord, 62.
In rescission, fatal, 70.
Request for, waiver by endorser, 83.
In enforcing mortgage, 128.
By attorney, no waiver of lien for fee, 155.
In claiming exemptions, as waiver of right, 185.
In redeeming, waives right, 210, 212.
DELIVERY:
Of goods, payment for on, waived, 32.
by absolute delivery, 32.
seller must demand payment, 32.
Not to pass title on, until payment made, 33.
Default in payment on, waived, 34.
Of policy with knowledge of invalidity, a fraud, 277.
waives breach of condition as to title, 279, 281.
as to encumbrances, 282, 284.
as to vacancy, 285.
as to use of premises, 286.
as to pre-payment of premium, 306, 307.
DEMURRER:
Right to general, not waived, 371.
by failure to demur, 371.
failing to argue demurrer, 371.
Ground of general, cannot be waived, 371.
Waived by failure to submit, 372.
INDEX. 491
[References are to sections.]
Filing answer after overruling of, 373.
Held waiver of defects, 373.
Error in overruling, 378.
waived by amending pleading, 378.
by offer to amend, 378.
To evidence, 452, et seq.
waived by introducing evidence, 453.
When taken, 453.
Must be exception to ruling on, 454.
DENIAL OF LIABILITY:
By maker of note, no waiver of demand, 87.
By insurer, waives proof of loss, 325.
on other grounds, 326.
waives right of arbitration, 340.
DEPOSITIONS:
Statutory requirements as to, 417.
Must be on notice, 417.
Defective or lack of notice, waived, 417.
by participating in taking of, 417.
by cross-examining witness, 417.
Defects in waived, unless motion to suppress be filed, 417.
Objection to, must be made when taken, 418,
waiver by other facts, 418.
DISAFFIRMANCE :
Rights to, under fraudulent contract, 68.
Act of, conclusive, 68.
Attachment, an affirmance of contract, 68.
held a disaffirmance, 68.
Of contract, by infant, 8.
must be in reasonable time, 8.
Of voidable subscription to stock in corporation, 238.
Of act of tort-feasor, 343.
DITCHES:
Acceptance of, no waiver of defects in, 14.
DRAFT:
Drawing, as waiver of mechanic's lien, 163.
EJECTMENT:
Brought to enforce forfeiture, 58.
ELECTION:
To affirm sale, waives right to re-take goods delivered, 65.
Complement of waiver, 65.
Of one remedy, waives others, 65, 68.
Of infant, waives right to avoid, 8.
To attach, waives mortgage lien, 112.
Of remedies, under mortgage, 118, 119.
To take personal liability, waives carrier's Hen, 150.
Between attachment and mechanic's lien, 169.
To claim exemptions, 186.
To ignore statute of limitations, 216.
To forfeit shares, waives right to sue, 247.
492 INDEX.
[References are to sections.]
Between tort and implied contract, 343.
To affirm tort, irrevocable, 344.
Of remedies, 347.
To sue for conversion, instead of value of goods, 348.
illustrations of, 350.
Indicated only by pleadings, 351.
ENCUMBRANCES:
Application for insurance failing to disclose, 282.
Waiver by insurer's failing to inquire, 282.
by agent's failing to mention, 282.
by agent's advising not to mention, 282, 284.
by delivering policy, 282, 284.
by receipt of premiums, 282.
knowledge by insured, of false answer, 283.
Subsequent to deliver of policy of insurance, 295, 296.
waived by assent or conduct, 295, 296.
ENTRY TO FORECLOSE:
Waived by conduct, 137.
Not waived by release of judgment, 138.
Waived by judgment at law, 138.
by extension of time, 139.
by agreement to re-convey, 139.
Waiver of must be by holder of mortgage, 140.
EQUITY OF REDEMPTION:
Not attachable, 112.
Levy of execution on, 121.
Sale of, 121, 124.
Cannot be waived in mortgage, 199, 200, 201.
even though such be intention, 200.
in deed as mortgage, 201.
By separate instrument, 202, 204.
In absolute conveyance, 203.
In deed of trust, 204.
Waived by agreement after mortgage, 205, 206, 207, 208.
must be voluntary, 206.
by conveyance to mortgagee, 207.
by parol agreement, 209.
statute of frauds affecting, 209.
Is equitable right, 210.
Must be exercised in reasonable time, 210, 213.
Time for, provided by statute, 211.
Lost by laches, 212.
by other conduct, 213.
Must be consideration for waiver of, 208, 213.
with knowledge, 214.
EQUITY:
Forfeitures not favored In, 52.
Deed considered as mortgage, 201.
Redemption, right in, 209.
ESTOPPEL:
Waiver by, 3, 91.
INDEX.
[References are to sections.]
EVIDENCE:
Of promise to pay by endorser, 90.
Presumptive of notice, 90, 91.
Prima facie, of demand and protest, 96.
Prime facie, of payment of note, 159.
Privilege from giving, 190.
between attorney and client, 191.
Objection to inadmissible, when offered, necessary, 427.
when taken, 428.
when too late, 428.
to parol, 428, 433.
to secondary, 429.
to documentary, 429.
to incompetent, 430.
variance from pleadings, 429, 433.
Specifying, in objection, 431.
General objection to, on trial, waives special on appeal, 432,
436, 437.
where part of evidence admissible, 432.
Objection for incompetency of, 433.
waives other grounds of objection, 433.
Objection to as incompetent, irrelevant and immaterial, 434.
evidence partly admissible, 435.
where admissible for any purpose, 436.
waives objection to competency of witness, 437.
other objections, 437.
Exceptions to foregoing rules, 438.
Objections waived if abandoned, 439.
illustrations of such waiver, 439.
Variance of, from pleadings, 440.
excluded on motion, 440.
must be objected to in lower court, 440.
objection on other grounds, 440.
when objection to be made, 440.
Exclusion of, must be excepted to, 444.
time for exception, 444, 445.
exceptions must specify grounds, 444, 445.
Insufficiency of, to sustain verdict, 447.
Introducing, as waiver of right to non-suit, 448, 449.
Demurrer to, 452.
waived by introducing evidence, 453.
when taken, 453.
exception must be taken to ruling on, 454.
EXCEPTION; EXCEPTIONS:
To ruling on objection to incompetent witness, 419.
To any ruling, essential to appeal, 426.
Must follow overruling of objection, 441, 446.
Must specify ruling objected to, 441.
Must be to each ruling, 442, 443.
To exclusion of evidence, 443.
when taken, 443.
must be specific, 443.
To admission of evidence, 444, 445.
time for, 444, 445.
must specify grounds, 444, 445.
To competency of witness, 446.
494 INDEX.
[References are to sections.]
To order of proof, 446.
To ruling on motion for non-suit, 451.
To ruling on demurrer to evidence, 454.
To instructions, giving of, 460.
must follow objection, 460.
form of, 460.
must point out defects, 461.
what waived, 462.
To refusal to instruct, 465.
error waived without, 465.
error must be pointed out in, 466.
On one ground, waives others, 466.
Time for, 467.
Statutory provision as to, 457.
To findings of fact, 470.
EXCLUSION:
(See: Evidence; Exceptions; Practice)
EXECUTION:
Levy of, waives lien of chattel mortgage, 116.
not where property exempt, 116.
not where execution abandoned, 116.
No waiver of lien of real estate mortgage, 119, 120.
on mortgaged premises, 121. 122, 123.
on equity of redemption, 121.
On goods, waives carrier's lien, 151.
As waiver of mechanic's lien, 169.
of vendor's lien, 174.
Levy of, on exempt property, 185.
EXEMPTIONS:
Whether can be waived, 182.
Are for debtor's family, 182.
May be waived unless prohibited by constitution, 182.
Whether waived by concurrent agreement, 183.
against public policy, 183.
debtor must be head of family, 184.
by single man, 184.
For benefit of poor and needy, 184.
Waiver of in note, 184.
in confession of judgment, 184.
to pay debt from insurance, 184.
Waiver by conduct, 185, et seq.
after agreement, 185.
by inconsistent conduct, 185.
Must be claimed in reasonable time, 185.
Pledge as waiver of, 185.
Abandonment of business as waiver of, 185.
By conveyance of property, 185.
Waived by laches, 185.
Of partners, 185.
Not waived by failure to claim till sale of property, 188.
Failing to elect between, 186.
Directing levy on certain property, 186.
Traversing attachment on other grounds, 18C.
INDEX. 495
[References are to sections.]
Agreement to turn over other property, 186.
Receipting officer for goods, 186.
Homestead, 187, 188.
Need not be claimed, 188, 189.
Wife may claim, 188.
Not divested by judgment, 189.
Plea of, in judgment in tort, 351.
From service of process, 366.
who are exempt, 366, 368.
right must be claimed, 366, 368.
waived if not claimed, 366.
by permitting default judgment, 366.
By entering appearance, 366.
FACTS:
Knowledge of, essential, 66.
Avoiding contract, 68.
What is reasonable time, depends on, 70.
Knowledge in presentment and protest, 73.
necessary for waiver by endorser, 88, 89.
In entry to foreclose mortgage, 137.
foreclosure sale, 142.
Knowledge of essential to set aside foreclosure sale, 144.
FALSE REPRESENTATIONS:
By mortgagee, waives priority, 129.
Retaining property after discovering, 345.
That mortgage is prior lien, 345.
FELONIES:
(See, Crimes; Criminal Law.)
FINDINGS OF FACT:
Defects in, must be objected to, 470.
Exceptions to, 470.
FORECLOSURES:
Only remedy under mortgage, 121.
Waiver of right, 131.
by extension of time, 132.
For non-payment of interest, 132, 133.
of part of principal, 134.
of taxes or insurance, 135.
From failure to pay part of principal, 136.
Entry for, waived by conduct, 137.
not by release of judgment, 138.
Possession is form of, 138.
Waived, by judgment at law, 138.
Entry for, waived by other conduct, 139.
Waiver of must be by holder, 140.
Sale under, waiver of by agreement, 141.
by extension of time, 141.
irregularities in waived by redemption, 145.
496 INDEX.
[References are to sections.]
FORFEITURES:
Waived by acceptance of payment, 40, 45.
Waived where not insisted on, 43.
Not favored at law or in equity, 52.
Is financial punishment, 52.
Party cannot claim, if caused by his own act, 52.
Benefit of, may be waived, 52.
Slight acts show waiver of, 53.
Waived by silence of landlord, 54.
Waived prior to accrual of right to, 54.
Delay in claiming, waiver of, 55.
Waived unless contract rescinded promptly, 56.
by extending time of payment, 56,
by proceeding after default, 56.
Waived by suing for specific performance, 56.
In land contract, waived by executing deed, 56.
Waived by implication, 56.
by transferring purchase notes, 56.
Vendor accounting with vendee, waives, 57.
In deed, waived, unless entry made, 58.
Not waived by failure of formal act, 59.
For sale of liquor on premises, 59.
Not waived by permitting tenant to hold over, 60.
Tenant liable to, cannot set up own default, 61.
Landlord waives by accepting rent, 62.
by acquiescence in delayed payment of rent, 63.
Not waived by accepting rent after notice to quit, 63.
For future breach, not waived by accepting rent, 63.
Must be claimed during term of lease, 63.
Declared, if tenant sub-lets, 64.
Waiver of, by taking rent from sub-lessee, 64.
Waiver of in mortgages, 132, et seq.
For non-payment of interest, waived by extension of time,
132.
insurance or taxes, 135.
Of shares in corporation, right conferred only by statute, 246.
waived by delay in declaring, 246.
enforcing, waives right to sue, 247.
irregularity in, waived, 248.
Of charter, by corporation, 258. et seq.
waived by permitting corporation to continue, 258.
illustrations of waiver of, 259, 260.
In insurance contracts, 266.
waived by agents of insurer, 266.
of policy, by change in title, 291.
by subsequent encumbrances, 295.
for mis-use of premises, 297.
for additional insurance, waiver of, 299.
by treating policy as in force, 299.
for non-payment of premiums, 306, 308.
waived by recognizing policy, 315.
for breach of condition in, 315.
waived by failing to cancel policy, 315.
knowledge of agent imputed to insurer, 316.
for failure to give notice of loss, 319.
INDEX. 497
[References are to sections.]
FORMALITIES:
Of tender, waived, 47.
Of presentment and notice, necessary, 72, 76.
Waived by agreement or conduct, 72.
Proof of waiver is equivalent to, 73.
Of presentment, etc., waived orally at maturity, 79.
by conduct, of endorser, 110.
Of transfer of shares in corporation, waived, 250, 252.
FORMER JEOPARDY:
Constitutional right, 389.
Asserted by special plea, or waived, 389.
Not a defense under general issue, 389.
New trial is waiver of, 390.
Moving to set aside verdict, 390.
Fraud in first trial, 392.
waives plea of, 392.
FRAUD:
Contract induced by, 66.
Knowledge of, essential to rescission, 66.
Damages may be had for, 66.
Waived, by action to enforce contract, 67.
by recovering judgment, 67.
Continuing under contract after knowledge of, 71.
By endorser of bill or note, 91.
By mortgagee, as waiver of lien of mortgage, 129.
in foreclosure sale, 142.
By guest, in obtaining possession of goods from inn-keeper,
153.
In waiver of redemption, 206, 208.
In subscription to stock of corporation, 233, et seq.
makes voidable, 237.
waived by acquiescence, 237.
by other acts, 238.
Of insurer, in acting contrary to charter, 275.
in delivering policy with knowledge of its invalidity, 277.
Waivers of, not favored, 345.
Waiver of, by retaining property, 345.
Action for, though contract performed, 347.
In criminal prosecution, 392.
waives plea of former jeopardy, 392.
GARNISHEE:
Defects in affidavit waived by, 385.
by appearance, 385.
filing answer, 385.
contra, 385.
GOODS:
Payment for, not demanded, waived, 32.
on delivery, not waived unless so intended, 33.
Title of, not to pass till paid for, 33.
Right to re-take, waived by giving credit, 34.
must be exercised promptly, 34.
Fraud In sale of, waived by judgment, 67.
by attachment, 68.
B. L. W.— 32
498 INDEX.
[References are to sections.]
GUARDIAN; GUARDIANS:
Power of, to waive rights of infants, 8, 9.
to waive statute of limitations, 9.
jurisdictional process, 10.
HEAD OF FAMILY:
Exemptions to, 182, 183.
Whether may waive exemptions, 183, 184.
Homestead exemptions of, 188.
Failing to claim exemptions, wife may, 188.
HOLDER:
Laches of in regard to presentment and protest, 81, 83, 86,
89, 94, 95.
waived by part payment, 95.
May show that endorser knew of laches, 96.
HOMESTEAD:
Right of, to be asserted, 187, 189.
is a personal one, 187.
to head of family, 188.
Wife may assert, 188.
Not divested by judgment, 189.
HUSBAND AND WIFE:
Privileged communications between, 198.
statutory provision for, 198.
waived by testifying, 198.
by failing to object, 198.
by other acts, 198.
IGNORANCE:
Of legal effect of failure of presentment and protest, 94.
Of law, 73.
IMPLIED PROMISE:
By endorser to pay, by asking more time, 84.
delay of suit, 84.
As waiver of statute of limitations, 220.
from acknowledgment of debt, 220.
requisites of, 220, 221.
INCONSISTENT:
Remedies, election of, 65, 68.
conclusive, 68.
Language or conduct, a waiver, 72.
Attachment is, with lien of chattel mortgage, 112, 114.
Personal action and foreclosure, not, 119.
Conduct by mortgagee, 123, 127.
Mortgage is, with mechanic's lien, 164.
Collateral security not, with lien, 166.
Conduct, waiver of exemptions by, 185.
INDORSEMENT:
Waiver in, 75.
In contract separate from instrument, 75.
Each, is independent of others, 75.
Waiver subsequent to, 78, 80.
INDEX. 499
[References are to sections.]
Of waiver on insurance policy, 317, 318.
authority of agents for, 317, 318.
of proofs on policy, 337, 338.
INDORSEE:
Bound by waiver in bill or note, 74.
Adopts terms of instrument, 74.
Knowledge implied from indorsement, 74.
Oral waiver by, 75.
Waives presentment, etc. by promise to pay, 76.
Requesting extension of time, 78, 84, 87.
Rights of not affected by agreements between holder &
maker, 78.
Waiver by, of demand, etc. at maturity, 79.
by admitting liability, 79, 80.
Presumption from conduct of, 81.
Waiver by, must be with knowledge, 81.
Must show laches of holder, 81.
New promise by, after release, must be unconditional, 83.
implied from asking delay of suit, 84.
Knowledge of facts imputed to, 88, 89.
Part payment by, no waiver, 89.
Knowledge of laches of holder presumed, 90, 91.
Payment by, waives demand and protest, 95.
paying interest, 96.
receiving security, 97, 98, 99, 100.
taking assignment, 97, 98, 99.
taking confession of judgment, 97.
if security is sufficient, 99 to 102.
Taking security at time of indorsement, 101.
between indorsement and maturity, 101.
after maturity, 102.
Waivers by, as affected by statute of frauds, 109.
INDICTMENT:
Failing to state offense, 388.
cannot be waived by accused, 388.
INCOMPETENCY:
(See: Witness; Objections; Evidence.)
INFANTS:
Power of, to waive rights, 7.
May disaffirm contract, 8.
Judgment by default against, 8.
Statute of limitations, guardian cannot waive, 9.
nor jurisdictional process, 10.
Attorney cannot waive process for, 11.
JNN-KEEPERS:
Lien of, depends on possession, 153.
waived by surrender of possession, 153.
possession of goods obtained by fraud of guest, 153.
waived by taking security for debt, 153.
or giving credit, 153.
500 INDEX.
[References are to sections.]
INSURANCE:
Non-payment by mortgagor, 135.
Carried on by corporations, 262.
Companies must act by agents, 262.
Limiting power of agents, 262, 263.
General rules of agency applicable to, 263.
Conditions in policies, 264.
agents may waive, 265, 266.
Knowledge of agent is knowledge of insurer, 266.
Agent as representing insured, 266, 267, 268.
Insurer questioning acts of its agents, 266.
Agent held out as such by insurer, 267.
Statements in applications unknown to applicant, 267.
Who are agents of insurer, 269.
Restricting authority of agents, 269, 270.
insured must have knowledge of, 271.
Whether clerks are agents, 272, 273.
Sub-agents, 272.
Additional, waiver of condition against, 273.
Acts prohibited by charter, 274, 275.
Insurer acting contrary to charter, fraud, 275.
Violating by-law, 275, 276.
Policy not void for violation of by-law, 276.
Knowledge of all facts when policy issued, 277.
Breach of conditions before delivery of policy, 277.
delivering policy with knowledge of, 277.
waived by silence of insurer, 278.
Breach of condition as to title, waived, 279, 280.
by delivering policy with knowledge, 279, 280, 28L
by other conduct, 291, 292.
Oral application without disclosing encumbrances, 282.
waiver by insurer failing to inquire, 282.
by agent failing to mention, 282, 284.
by agent's advising not to mention, 282.
by delivering policy, 282, 284.
by collecting premiums, 282.
knowledge by insured of false answers, 282.
Breach of condition as to vacancy, waived, 285.
Use of premises, breach of condition as to, waived, 286.
by delivering policy, 286.
Breach of condition as to prior insurance, 287, 288.
knowledge of, by agent, 287, 288.
waived by taking premiums, 287, 288.
by issuing policy, 287.
"Iron-safe" clause, 289.
breach of, known by agent, 289.
Endorsing on policy consent to transfer title, 291.
Vacancy of premises after delivery of policy, 293.
whether agent may waive, 293.
endorsing consent on policy, 293, 294.
not waived by silence, 294.
Encumbrances after delivery of policy, 295, 296.
waived by assent or conduct, 295, 296.
INDEX. 501
[References are to sections.]
Mis-use of premises after delivery of policy, 297, 298.
not waived by silence of agent, 297, 298.
nor failure to cancel policy, 297.
by consent of agent, 298.
Additional insurance, 299.
waiver by insurer, 299.
by agent, 299, 301.
consent endorsed on policy, 300.
failure to endorse, 301, 302, 303.
silence of insurer, 301, 302.
failure to cancel policy, 303.
collecting premiums, 303.
Premiums, 304, et seq.
collected by agents, 304.
pre-payment of, waived, 304.
orally or in writing, 304.
by delivering policy without collecting, 305.
by giving credit, 305, 306.
by custom, 306, 307.
after delivery of policy, 308.
extension of time, 308.
waived by conduct, 308.
accepting past-due payment, 308, 309.
authority of agents to waive time of payment, 310, 311.
acceptance of by insurer, 311, 312.
waiver by custom, 312, 313.
cash payment, waiver of, 313.
by accepting note, 314.
by giving credit, 314.
agent may waive, 314.
Waivers in, indorsement of on policy, 317, 318.
powers of agents for, 317, 318.
Loss, notice of, 319.
not waived by silence of insurer, 320.
oral notice of, 320.
conduct waiving, 320, 322.
to agent, not to insurer, 321.
contra, 322.
out of time, 323.
defective in form, 323.
Loss, proof of, necessary unless waived, 324.
waived by conduct, 324, 327, 328.
by denying liability, 325.
by refusing payment on other grounds, 326.
by demanding arbitration, 327.
by silence, 328, 331.
defects in, waived unless objected to, 329, 331.
failure to return, 330.
contra, 331.
objection on other grounds, 332.
not filed in time, 333, 334.
waived by conduct, 333, 334.
whether agent may waive, 335, 336.
whether waiver of may be oral, 337, 338.
502 INDEX.
[References are to sections.]
Arbitration, as a condition precedent to recovery, 339.
may be waived by conduct, 339.
by refusal to pay, 340.
by denial of liability, 340.
Limitation of time to sue, 341, et seq.
slight evidence sbows waiver of, 341.
waived by conduct, 341.
by part payment of loss, 341.
by promise to pay, 341.
silence not a waiver, 342.
other conduct not a waiver, 342.
INSTRUCTIONS:
Given, must be objected to, 457.
Errors in must be pointed out, 457.
in substance, 457, 458.
in form, 458.
waived unless objected to, 458.
time for objections to, 458, 459.
Written, right to, 459.
waiver of, 459.
by agreement, 459.
Exception to, as given, 460.
form of, 460.
must point out defects in, 461.
general exception not sufficient, 462.
what waived, 462.
Duty to request, 463.
Omitted, waiver of, 463.
Incomplete, must be requested, 463.
Insufficient, must be requested, 464.
Requests for, instances where necessary, 464.
Refusal of, exception to, 465.
error waived without exception, 465.
error must be pointed out, 466.
exception on one ground waives others, 466.
Time for exceptions to, 467.
Statutory provisions for exceptions to, 467.
Exceptions to, after verdict, 468.
after jury retire, 468.
on motion for new trial, 468.
on appeal, 468.
INTEREST:
Payment of, by endorser waives presentment and protest, 96.
Non-payment of, by mortgagor, 132.
Acceptance by mortgagee of part, effect of, 132, 134.
Waiver of right to foreclose for non-payment of, 134.
Payment of, as waiving statute of limitations, 224.
INTENTION:
Necessary ingredient of waiver, 14, 33.
Makes time essence of contract, 36, 37, 40.
To waive time, need not be express, 45.
Tender, apparently waived without, 46.
Uncommunicated, not to accept tender, 51.
To abandon contract, in rescission, 66.
INDEX. 503
[References are to sections.]
l"o be bound by contract, waives rescission, 71.
To forego right, waiver is, 1.
Need not be express, 2.
To waive presentment, protest and notice, 78.
Evidence of, to pay note, waives demand, 80.
Of mortgagee, in taking other security, 126.
In waiver of mechanic's lien, 157.
in taking mortgage, 164.
in taking collateral security, 166.
In waivers of the statute of limitations, 216.
In waivers of irregularities in subscriptions to stock, 235, 238.
"IRON-SAFE" CLAUSE:
Conditions as to, in insurance policies, 289, 290.
breach of, known to agent of insurer, 289, 290.
waived by delivering policy, 289.
by other conduct, 289, 290.
by acquiescence, 290.
JUDGE, SPECIAL:
Objections to, 407.
Must be special authority for appointment of, 407.
Objections to competency of, waived unless asserted, 407.
must be in reasonable time, 407.
and before trial, 407.
JUDGMENT:
Recovering, waives fraud, 67.
By default, against infant, 8.
Indorser taking confession of judgment from maker of note,
97.
Personal, no waiver of mortgage, 119, 127.
At law, waives entry to foreclose, 138.
No waiver of mechanic's lien, 168.
Waiver of vendor's lien, 174.
Does not divest homestead right, 189.
Consent, right to appeal from, 476.
Waiver of right to appeal from, 476.
By stipulation, right to appeal from, 476.
Payment of, appeal after, 477.
Compliance with, right to appeal after, 478.
Accepting benefits of, right to appeal after, 479, 480, 481.
JURISDICTION:
Over defendant, conferred by appearance, 352, 357, to 366.
Over subject-matter, 367.
cannot be waived, 367, 369.
consent will not confer, 367.
appearance will not confer, 367.
Limited by statute or the constitution, 368.
Parties cannot divest courts of, 369.
by agreements to arbitrate, 369.
Of offenses, 386.
Over person of accused, appearance gives, 386.
Waived by plea of accused, 386.
by waiving extradition, 386.
504 INDEX.
[References are to sections.]
JURORS:
Objections to panel, 408.
failure to object, 408.
objections to, waived by challenging the poll, 408.
Objection to poll, waived by accepting, 409.
must be made before trial, 409.
Disqualification unknown to party, 410.
not a waiver of, by acceptance, 410.
of juror, waived by peremptory challenge, 411.
waiver by accepting jury without exhausting peremptory
challenges, 411.
Number of, right to full, 414.
at common law, 414.
may be waived, how, 414.
acts amounting to waiver, 415.
JURY; JURY TRIAL:
Waiver of, in misdemeanors, 394.
not in felonies, 394.
Species of arbitration, 395.
in both classes, 395.
Number of jurors, 396, et seq.
in felonies, 397.
cannot be waived, 397.
nor consented to, 397.
in misdemeanors, may be waived, 397.
or agreed upon, 397.
Acceptance of, waives disqualification, 409, 410.
other acts as waiver, 411.
Right to, guaranteed by constitution, 412.
taken away only by consent, 412.
may be waived, 412.
whether waiver of is irrevocable, 412.
submitting to reference, as waiver of, 413.
other acts, as waiver of, 413.
Right to full number of jurors, 414.
at common law, 414.
may be waived, how, 414. 415.
Taking case from, 447.
KNOWLEDGE:
Landlord must have, of subletting to waive conditions, 64
Of fraud inducing contract, 66, 67.
Of facts voiding contract, 68.
Attachment after, waives fraud, 68.
Necessary for rescission, 69.
Of fraud, acting under contract after, 71.
Is element of waiver, 2, 3.
Where imputed, 2.
Of facts in presentment and protest, 73, 93.
Of law, in presentment and protest, 73.
Of endorser, that maker absconded, 78.
Of facts releasing endorser, 81, 88.
No waiver by endorser, without, facts, 88, 89.
May be imputed to endorser from facts, 58.
Part payment without, no waiver by endorser, 89.
INDEX. 505
[References are to sections.]
Of endorser, presumed, 90.
Burden of showing laches, on endorser, 92.
contra, 90, 93.
Of legal effect of holder's default, 93.
Of endorser at time of part payment, 95.
By mortgagee attaching property, 113, 114.
Of facts, to set aside foreclosure sale, 144.
Essential, in accepting surplus from foreclosure, 146.
Must have, to waive redemption, 214.
By subscriber of corporation, in waiving condition of sub-
scription, 228.
Of insurer's agent, is of insurer, 266, 316.
knowledge of by insured, 271.
By officers and agents of insurer, of provisions of charter, 274.
Of insurer, of terms of charter, 274.
of all facts, when policy issued, 277.
as to title of property, 279.
of encumbrances, by insurer's agent, 282.
By insured, of false answer, 283.
By insurer, of additional insurance, 301.
By insurer, of cause of forfeiture, 315.
LACHES:
Waives breach of condition subsequent, 59.
Waives right to rescind, 69, 71.
Promise to pay after, of holder as to presentment, etc., 81, 85,
89.
Of holder, to be proved by endorser, 83.
Not waived by unaccepted offer of endorser to pay, 86.
nor unless endorser has knowledge of, 88.
Knowledge of, by endorser presumed, 90, 91.
Burden of showing, on endorser, 92.
contra, 93.
Ignorance of endorser, of legal effect of, 94.
In enforcing mortgage, 128.
Of mortgagee, on default of mortgagor, 135.
Of mortgagor, in setting aside mortgage sale, 143.
As waiver of exemptions, 185.
Waives right to redeem, 210, 212.
LANDLORD AND TENANT:
Acceptance of rent by landlord, waives forfeiture, 53.
Landlord waives forfeiture by silence, 54.
Forfeiture waived by landlord by recognizing lease, 60.
Landlord must act promptly to enforce forfeiture, 60, 61.
No waiver from permitting tenant to hold over, 60, 61.
Landlord must claim forfeiture, 61.
Tenant cannot complain of own default, 61.
Acceptance of rent waives default of tenant, 62, 64.
Acquiescence in delayed payment of rent, 62, 63.
Receiving rent from assignee, no waiver of breach of condi-
tion, 63.
Forfeiture not waived by accepting rent after notice to quit,
63.
nor for future breaches, 63.
506 INDEX.
[References are to sections.]
Landlord must claim forfeiture during term, 63.
Forfeiture declared if tenant sub-lets, 64.
Accept of rent from sub-lessee, 64.
LAW:
Knowledge of, in presentment and protest, 73, 94.
LEASES:
Conditions subsequent in, 60.
Leasing premises to another, no waiver of breach of condi-
tions, 61.
Acceptance of rent by landlord, waives forfeiture, 62.
Delay in paying rent acquiesced in by landlord, 62.
Landlord must claim forfeiture during term, 63.
Accepting rent from sub-lessee, 64.
Landlord must know of sub-letting, 64.
LEVY:
Of attachment, waives right to rescind, 68.
fraud in sale of goods, 68.
affirms contract, 68.
waives chattel mortgage, 112.
equity of redemption, 112.
as waiver of mortgage, 116.
as waiver of mechanic's lien, 169.
as waiver of vendor's lien, 174.
Of execution, waives chattel mortgage, 116.
not if on exempt property, 116.
nor where execution abandoned, 116*.
nor real estate mortgage, 119, 120.
on mortgaged premises, 122, 123.
on equity of redemption, 121, 122.
waives carrier's lien, 151.
mechanic's Hen, 169.
vendor's lien, 174.
on exempt property, 185.
directing levy on exempt property, 186.
on homestead, 187.
LIEN; LIENS:
Of chattel mortgage, waived by attachment, 112, 114.
not lost by attachment, 114.
waived by execution, 116.
not where execution abandoned, 116.
waived by attempted sale, 117.
Of real estate mortgage, not changed by, 118.
change in form of debt, 118.
not waived by personal judgment, 119, 127.
nor levy of execution, 119, 120, 123.
contrary view, 122.
taking other security, 125.
new mortgage, 125.
intention of mortgagee, 126.
whether waived by attachment, 127.
lost by delay in enforcing, 128.
second, as waiver of priority, 128.
INDEX. 507
[References are to sections.]
priority of, waived by fraud or misrepresentation, 129.
by extension of time, 130.
Possessory, waived by surrender, 148.
Of common carrier, 149, et seq.
waived by surrendering possession, 150.
must be voluntary, 150.
by conduct, 150.
waived by attaching goods, 151.
by levying execution, 151.
by giving credit, 152.
Of Inn-keepers, based on possession, 153.
lost by surrender of possession, 153.
Of liverymen and agisters, 154.
Of Attorney, waived by taking security, 155.
not by delay in enforcing, 155.
nor by taking note, 155.
conduct waiving, 156.
Mechanic's, waived by conduct, 157 et seq.
whether taking note waives, 158, 159.
note of a third person, 160.
negotiation of the note, 161, 162.
drawing draft, as waiver of, 163.
waiver by taking mortgage, 164, 165.
collateral security, 164, 166.
not inconsistent with, 166.
what is collateral security, 167.
not waived by personal judgment, 168.
whether waived by attachment, 169.
by execution, 169.
agreements waiving, 170.
to arbitrate, 170.
extending time of payment, 170.
may be waived by agent, 171.
waiver by sub-contractor, 171.
Vendor's lien, waiver of, 172, et seq.
by taking vendee's note, 172.
collateral security, 172.
mortgage, 172, 173.
note of a third person, 172.
waiver need not be in writing, 173.
failing to enforce in reasonable time, 173.
securing personal judgment, 174.
attachment, 174.
execution, 174.
On corporate shares, 253, et seq.
created by custom, 253.
is waived if not asserted, 254.
purchaser ignorant of, 254.
not waived by taking security, 254.
certificate reciting fully paid, 255.
registration waives lien, 257.
waived by giving credit, 257.
Of attachment, waiver of, 384, 385.
508 INDEX.
[References are to sections.]
LIMITATION OP TIME TO SUE:
In insurance, slight evidence to show waiver of, 341.
Waived by conduct, 341.
by part payment of loss, 341.
by promise to pay, 341.
silence not a waiver, 342.
other conduct not a waiver, 342.
LIMITATION:
(See: Statute of Limitations.)
LIQUOR:
Condition in deed not to sell, on premises, 59.
sale of single glass no breach, 59.
LIVERYMEN AND AGISTERS:
Lien of waived by surrender of possession, 154.
surrender must be intended as absolute, 154.
LOSS:
In Insurance, notice of required, 319.
not waived by silence of insurer, 320.
oral waiver, 320.
conduct waiving, 320, 322.
to agent, not notice to insurer, 321.
contra, 322.
out of time, 323.
defective in form, 323.
Proof of, necessary unless waived, 324.
waived by conduct, 324, 327, 328.
by denying liability, 325.
by refusing payment on other grounds, 326.
by demanding arbitration, 327.
by silence, 328, 331.
defective, waived unless objected to, 329, 331.
failure to return, 330.
contra, 331.
objection on other grounds, 332.
not filed in time, 333, 334.
waived by conduct, 333, 334.
illustrations of, 334.
\rhether agent may waive, 335, 336.
whether may be oral, 337, 338.
MECHANIC'S LIENS:
Waiver of, from conduct, 157, et seq.
Whether taking note waives, 158, 159.
Taking note of third person, 160.
negotiation of the note, 161, 162.
Drawing draft as waiver, 163.
Waiver of, by taking mortgage, 164, 165, 167.
collateral security, 164, 166.
not inconsistent with, 166.
what is collateral security, 167.
not waived by personal judgment, 168.
Whether waived by attachment, 169.
By execution, 169.
INDEX. 509
[References are to sections.]
Agreements waiving, 170.
to arbitrate, 170.
Extending time of payment, 170.
May be waived by agent, 171.
Waiver binds sub-contractor, 171.
MISDEMEANORS:
(See: Crimes; Criminal Law.)
MIS- JOINDER:
Of parties, 375.
Cannot be objected to for first time on appeal, 375.
Objection not waived by filing answer, 375.
Of causes of action, raised by demurrer, 376.
objected to in trial court, or waived, 376.
by special demurrer, 376.
by pleading over, 376.
MIS-NOMER:
Waived by proceeding to trial without objection, 360.
MISREPRESENTATION :
By mortgagee, waives priority, 129.
By mortgagee under absolute deed, 202.
In subscriptions to stock, 233, et seq.
makes voidable, 237.
waived by acquiescence, 237.
by other acts, 238.
MONEY:
Necessary to produce, in tender, 47.
production of, waived, 48.
counting of, waived, 48, 50.
Production of demanded, no waiver of tender, 51.
MORTGAGES:
Chattel, waived by attachment, 112, 114.
Inconsistent with attachment, 112.
Legal title under, 112.
Equity of redemption in, 113.
Attachment, property in custody of few, 114.
Lien, held not waived by attachment, 115.
waived by levying execution, 116.
not where execution abandoned, 116.
Attachment of proceeds of sale under, 117.
Real estate, secure indebtedness, 118.
not changed by change in form of debt, 118.
several remedies under, 119, 121.
not waived by personal judgment, 119.
nor levy of execution, 120, 121, 122, 123.
levy of execution on equity of redemption, 121, 124,
taking other security, 125.
accepting new mortgage, 125.
intention of parties, 126.
payment of, by taking new mortgage, 126.
by renewal, 126.
510 INDEX.
[References are to sections.]
not waived by suit on note, 127.
nor by judgment, 127.
whether waived by attachment, 127.
by delay in enforcing, 128.
second, as waiving priority, 128.
priority of, waived by misrepresentation, 129.
release of mortgagor from personal liability, 129.
waiver of priority by extension of time, 130.
breach of conditions in, 131, et seq.
payment of interest, 132.
default of mortgagor waived by conduct of mortgagee,
132, 133, 134.
default in paying taxes or insurance, 133, 135.
or part of principal, 136.
entry to foreclose, waived by conduct, 137.
possession is foreclosure of, 138.
entry under, waived by judgment, 138.
by other conduct, 139.
waiver must be by holder of, 140.
foreclosure sale, waiver of, 141.
by extension of time, 141.
payment or part payment, 141.
right to set aside, waiver of, 143.
irregularities in, waived by redemption, 145.
by accepting surplus, 146.
by other conduct, 146, 147.
taking, as waiver of mechanic's lien, 164, 165.
of vendor's lien, 172.
attorney signing, waives privilege of client, 192.
redemption cannot be waived in, 200, 204.
in deed as mortgage, 201, 204.
once a mortgage, always a mortgage, 202.
redemption from, waived by subsequent agreement, 208,
205, 208, 209.
must be voluntary, 206.
by conveyance to mortgagee, 207.
by parol agreement, 209.
statute of frauds affecting, 209.
Is equitable right, 210.
redemption must be in reasonable time, 210.
time for, provided by statute, 211.
lost by laches, 212.
by other conduct, 213.
must be consideration for waiver of, 208, 213.
with full knowledge, 214.
taking, no waiver of lien on shares in corporation, 254.
NEGLIGENCE:
Waiver inferred from, 2.
MEW PROMISE:
By endorser, to pay, 81.
Raises presumption of demand, 81.
Must be unconditional, 83.
Need not be express, 83.
Implied, 84.
INDEX. 511
[References are to sections.]
On condition, must be accepted, 85, 86.
By endorser, without knowledge of facts releasing him, 88,
89.
presumes knowledge, 90, 91.
Part payment by endorser as, 95.
Consideration for, 104, et seq.
As affected by statute of frauds, 109.
As waiving statute of limitations, 216, 219, 220, 222.
NEW TRIAL:
Motion for, must contain what, 471.
Errors waived, not mentioned in, 471.
Denial of, failure to except to ruling, 272.
Grounds, not specified in, waived, 272.
NON-SUITS:
What is a non-suit, 447.
Taking case from jury, 447.
On motion of defendant, 447.
Error in denying, waived by Introducing evidence, 448, 449.
Waived by failure to renew motion, 449.
Moving for, on one ground, waiver of others, 450.
Ruling on, must be excepted to, or error waived, 451.
NOT GUILTY:
Plea of statute of limitations under, 226.
NOTICE:
Waiver of on face of bill or note, 73.
Oral waiver of, 75.
Waived by promise of endorser to pay, 76, 81, 83, 89.
Waiver of, after endorsement, 78.
by extension of time, 78, 84, 87.
at maturity of paper, orally, 79.
by admitting liability, 79, 80.
Presumed from conduct of endorser, 81.
Waived by conduct, 81.
Waiver of, after maturity, 82.
Knowledge of absence of, presumed, 90, 91.
Proof of, waived, 91.
burden of proof as to, 93.
Paying interest as waiver of, 96.
Receiving security as waiver of, 97 to 102.
whether security taken to pay note, 103.
Consideration for waiver of, 104, et seq.
Of loss, under insurance policy, 319.
not waived by silence of insurer, 320.
oral waiver of, 320.
conduct waiving, 320, 322.
to agent, not to insurer, 321.
contra, 322.
out of time, 323.
defective in form, 323.
OATH:
Necessary to administer, to witness, 416.
Duty of party calling witness to have oath administered, 416.
Failure to administer, waived unless objected to, 416.
512 INDEX.
[References are to sections.]
OBJECTIONS:
To special judge, 407.
waived unless asserted promptly, 407.
To competency of witness, 419, 446.
as soon as incompetency learned, 419.
party calling, cannot make, 419.
not waived by cross-examining, 419.
Essential for appeal of any matter, 426, 427.
Must be made in trial court, 427.
when evidence is offered, 428.
when too late, 428.
To parol evidence, 429, 430.
To secondary evidence, 429.
To documentary evidence, 429.
To variance of evidence from pleading, 429, 433, 440.
Other inadmissible evidence, 429, 433.
Incompetent evidence, 430.
First made on appeal, 430.
Specifying grounds of, 431, 442.
and evidence objected to, 431.
General, at trial, waives special on appeal, 432, 436, 437.
To evidence partly admissible, 432.
For incompetency, 433.
waives other grounds, 433.
To evidence as incompetent, irrelevant and immaterial, 434.
evidence part admissible, 435.
if admissible for any purpose, 436.
waives competency of witness, 437.
waives other objections, 437.
Exceptions to foregoing rules, 438.
Questions raised on appeal without, 438.
Waived, if abandoned, 439.
illustrations of, 439.
For variance from pleading, 440.
excluded on motion, 440.
must be raised in lower court, 440.
objection to evidence on other grounds, 440.
when objection to be made, 440.
To exclusion of evidence, waived unless exception taken, 443.
To admission of evidence, waived unless exception taken, 444,
445.
To order of proof, 446.
Instructions given or refused must be objected to, 457.
oral, 459.
to refusal to instruct, 463.
To verdict, must be prompt, 469.
to defect in form of, 469.
must be specific, 469.
OCCUPANCY:
Of building, no waiver of defects in, 23.
OFFICERS:
Of insurance companies, power to waive provisions, 270.
to waive acts prohibited by charter, 274, 275.
Notice to, is notice to insurer, 276.
INDEX. 513
[References are to sectiong.l
ORAL:
Waiver of presentment and protest, 73, 75.
Waiver at time of endorsement, 76.
Waiver of demand, after endorsement, 78.
at maturity, 79.
Contract, defense against, 172, 179.
Communication, privileged, 193.
Agreement to waive redemption, 209.
Waiver of additional insurance, 301, 302.
of pre-payment of premiums, 304.
Notice of loss under insurance policy, 320.
Waiver of proofs of loss, 337.
contra, 338.
PAROL:
(See: Oral; Evidence)
PARTIES:
Mis-joinder of, 375.
appearing on face of complaint, 375.
cannot first be raised on appeal, 375.
not waived by filing answer, 375.
Plaintiff, incapacity of, 377.
PARTNERS:
Waiver of privileged communications, 191.
Not waived by endorser, of presentment and protest, 89. See,
95.
Of Interest by mortgagor, 131, 132.
Of mortgage debt after foreclosure, waiver, 141.
As waiver of statute of limitations, 224.
must be voluntary, 224.
of interest, 224.
Of subscriptions to corporation, waives conditions, 231.
PAYMENT:
In arrears, acceptance of, 40, 41.
Time of, waived, 46.
Extending time of, waives forfeitures, 56.
Of purchase-price, waiver of fraud, 67.
Making, waives right to rescind, 71.
Promise of, by endorser, waives demand, etc., 76. 78, 79.
New promise of, by endorser, 81.
Offer of, unaccepted, 85.
Promise of by endorser, must be with knowledge, 88, 89.
Presumes knowledge, 90.
As waiver by endorser, of demand and notice, 95, 96.
Of mortgage, by taking new mortgage, 126.
Delay In, presumes payment of mortgage, 132.
Of taxes or insurance, failure In, by mortgagor, 135.
Receipt of, waives entry to foreclose, 137.
Of mortgage, by conveyance to mortgagee, 208.
Implied promise of, waiving statute of limitations, 220.
Promise of, as waiving statute of limitations, 222.
Part payment, as waiver of statute of limitations, 224.
Of interest. 224.
B. L. W.— 33
514 INDEX.
[References are to sections.]
For subscriptions, as waiver of conditions, 230, 231.
For insurance premium, waiver of pre-payment, 304, et Seq.
Time of payment, 304, 314.
Of judgment, waiver of right to appeal, 477.
Accepting payment of judgment, waives right to appeal, 479,
480, 481.
PHYSICIAN AND PATIENT:
Privileged communications between, 196.
waived by attorney, 196.
by assignee, 196.
by heir-at-law, 196.
by guardian, 196.
waived bv implication, 197.
calling physician as witness, 197.
failing to object, 197.
patient testifying, 197.
by other acts, 197.
PLACE:
For tender, 146.
PLAINTIFF:
Need not plead that contract is In statute of frauds, 177.
Must bring suit in court having jurisdiction of subject-matter,
367.
Cannot consent to jurisdiction, 367.
Incapacity of, ground of demurrer, 377.
or taken by answer, 377.
waived unless objected to prior to trial, 377.
taken by special demurrer, 377.
PLEADING; PLEADINGS:
Plaintiff need not show statute of frauds, 177.
Defendant must plead statute, 177, 181.
Statute of frauds under general issue, 179.
Privileged communication waived by, 194.
Failure to plead statute of limitations, waiver, 225.
not in criminal cases, 226.
Election between tort and contract shown only by, 351.
To merits, waives defects in complaint, 371.
Answering after overruling of demurrer, 373.
held waiver of defects in complaint, 373.
contra, 374.
Venue, waiving by not objecting to, 372, 380.
Former jeopardy, to be set UD by special, 389.
Variance of proof from, 429, 433, 440.
PLEDGE:
As waiver of exemptions, 185.
POLICY; POLICIES:
Conditions in, 264.
waiver of, forbidden, 264.
agents may waive, 265, 266.
Provision that agent shall represent insured, 266.
INDEX. 515
[References are to sections.]
Filling in and delivering, as constituting agency, 269.
Restrictions on authority of agents, 269, 270.
general and local, 270.
Officers waiving provisions in, 270.
Countersigned by sub-agents, 272, 273.
without knowledge of insurer, 273.
Not void for violation of by-laws, 276.
Breach of condition before delivery of, 277.
Delivery of, with knowledge of invalidity, 277.
waives condition as to title, 279, 280, 281, 291, 292.
against encumbrances, 282, 284.
as to vacancy, 285.
as to use of premises, 286.
as to prior insurance, 287.
as to "iron-safe" clause, 289, 290.
Endorsing on, consent to transfer, 291.
Vacancy of premises after delivery of, 293.
Endorsing on, consent to vacancy, 293, 294.
not waived by silence, 294.
Mis-use of premises not waived by failure to cancel, 297, 298.
by consent of agent, 298.
Additional insurance, consent endorsed on, 300.
failure to endorse on, 303.
to cancel, 303.
Provide for payment of premium, 304.
Delivery of, without collecting, for, 305, 306.
Endorsement of waiver on, 317.
Loss under, notice of, 319.
not waived by silence of insurer, 320.
oral notice of, 320.
to agent, not to insurer, 321.
contra, 322.
conduct waiving, 320, 322.
out of time, 323.
defective in form, 323.
endorsement of waiver on, 337, 338.
Arbitration under, 339, et seq.
POOR AND NEEDY:
Exemptions for benefit of, 184.
POSSESSION:
Taking, not a waiver of damages, 15.
Of building, not waiver of defects, 15.
if defects are not discoverable, 23.
Remaining in, waives right to rescind, 71.
Is foreclosure of mortgage, 138.
Mortgagee entering into, 141.
Waives right to vacate sale, 145.
Common law lien based on, 148.
Surrender of, by carrier, waives lien, 150.
by inn-keeper, 153.
by liverymen, 154.
516 INDEX.
[References are to sections.]
POSSESSORY LIENS:
Common law liens are, 148.
Waived by surrender of possession, 150, 153.
must be voluntary, 150.
waived by conduct, 150.
not by surrender of possession if conditional, 1BO.
waived by attaching goods, 151.
by levying execution on, 151.
by giving credit for debt, 152.
by taking security, 152.
not by fraud, 153.
PRACTICE:
Criminal procedure:
Jury waived in misdemeanors, 394.
not in felonies, 394.
is species of arbitration, 395.
Number of jurors, 396, et seq.
in felonies, 397.
cannot be waived, 397.
nor consented to, 397.
in misdemeanors, 398.
full number may be waived, 398.
or agreed upon, 398.
Self-crimination, 399, et seq.
Objections to special judge, waived, 407.
Objections to jurors, 408.
must be made before trial, 408.
waived by accepting jury, 409.
disqualification of juror unknown to party, 410.
Right to jury trial, guaranteed, 412.
taken away only by consent, 412.
may be waived, 412.
whether waiver of, irrevocable, 412.
acts amounting to waiver of, 413.
Number of jurors, right to full, 414.
at common law, 414.
may be waived, how, 414.
acts amounting to waiver, 415.
Incompetent witness must be objected to, 419.
as soon as incompetency learned, 419.
party calling cannot make, 419.
not waived by cross-examining, 419.
Crimination of self, 420, et seq.
privilege waived unless claimed, 421, 423.
when to be claimed, 422.
whether attorney may claim for, 423.
extent of waiver, 424.
testifying before grand jury, 425.
at coroner's inquest, 425.
Objection is necessary to any matter for appeal, 426, 427.
must be made in trial court, 427.
to evidence, \vhen offered, 428.
when too late, 428.
to parol evidence, 429, 433.
to incompetent evidence, 430.
other Inadmissible evidence, 429. 433.
INDEX. 517
[References are to sections.]
specifying evidence in, 431.
general, at trial, precludes special, on appeal, 432, 436,
437.
evidence admissible in part, 432.
for incompetency, 433.
waives other grounds, 433.
as Incompetent, irrelevant and immaterial, 43 i.
evidence admissible in part, 435.
if admissible for any purpose, 436.
waives competency of witness, 437.
and other objections, 437.
Exceptions to foregoing rules, 438.
Objections waived, if abandoned, 439.
illustrations of, 439.
Variance of evidence from pleadings, 440.
excluded on motion, 440.
must be in lower court, 440.
objection on other grounds as waiver of, 440.
when objection to be made, 440.
Exception must follow objection, 441.
must specify ruling, 441.
to each ruling as made, 442, 443.
to exclusion of evidence, 443.
when taken, 443.
must be specific, 443.
to admission of evidence, 444, 445.
time for exception, 444, 445.
must specify errors, 444, 445.
Non-suit, right to, 447.
on motion, 447.
error in denying, waived by introducing evidence,
448, 449.
failure to renew motion, 449.
moving for on one ground, waives others, 450.
ruling on, must be excepted to, 450.
Demurrer to evidence, 452.
waived by introducing evidence, 453.
when taken, 453.
must be exception to ruling on, 454.
Directing verdict, 455.
right waived by introducing evidence, 455.
may move for, second time, 455.
Instructions, 456, et seq.
must be objected to, 457.
errors in, must be pointed out, 457.
waived unless objected to, 458.
written, right to, 459.
waiver of, 459.
by agreement, 459.
exceptions to giving, 460.
must point out defects, 461.
general exception, not sufficient, 462.
what waives, 462.
duty to request, 463.
Omitted, waiver of, 463.
518 INDEX.
[References are to sections.]
incomplete, must be requested, 463, 464.
refusal to instruct, exceptions to, 465.
error waived without, 465.
Verdict, objection to must be prompt, 469.
Findings of fact, defects in, 470.
exceptions to, 470.
New trial, motion for, 471.
denial of, waiver of errors in, 472.
PREMIUM:
Insurer receiving, waives breach of condition, 315.
against encumbrances, 282.
prior insurance, 287.
change of title, 291, 292.
additional insurance, 303.
Agents collecting, 304.
Payment of, waived, 304.
orally or in writing, 304.
by agent, 304.
by delivering policy, 305, 306.
by giving credit, 305, 306.
by custom, 306, 307.
Payment of, after delivery of policy, 308, et seQ.
at maturity, waived, 308.
extension of time for, 308.
waived by conduct, 308.
accepting past-due payment, 308, 309.
authority of agents to waive, 310.
acceptance by insurer, 311, 312.
waiver of, by custom, 312, 313.
Cash payment, waiver of, 314.
by accepting note, 314.
by giving credit, 314.
PRESUMPTION:
From conduct of endorser, 81, 93.
Shifts burden of proof, 81.
Of knowledge of laches, from promise of endorser to pay,
90, 92.
That notice was given, 90, 91.
Of presentment and protest, from part payment, 95.
PREVENTION:
Of perfomance of contract, a waiver, 25.
operates as discharge, 25.
contractee may recover, 25.
Making performance impossible, same as, 28.
Innocent party may recover contract price, 28.
Demanding illegal performance, the same as, 29.
or if party disable himself from performing, 29.
Refusing to treat contract as subsisting, 30.
refusal must be unequivocal, 31.
and acted on by other party, 31.
by one party, excuses other, 43.
Of tender, 50.
INDEX. 519
[References are to sections.]
PRESENTMENT:
For benefit of drawer or endorser, 72.
May be waived orally or in writing, 73. 75.
or by conduct, 73, 81.
Statutory provision as to, 73.
Waiver of, on face of instrument, 74.
in endorsement, 75.
Waived by promise to pay, 76, 81, 83, 89.
Waiver of, after endorsement, 78.
by extension of time, 78, 84, 87.
at maturity of paper, 79.
by admitting liability, 79, 80.
Presumed, from conduct of endorser, 81.
Waived after maturity, 82.
Promise, as waiver of, must be unconditional, 83.
by asking delay of suit, 84.
not by asking for renewal, 89.
nor by part payment, 89.
Knowledge of lack of, presumed, 90, 91.
Proof of, waived, 91.
Ignorance of legal effect of failure in, 94.
Waived by payment or part payment, 95.
Payment, prima facie evidence of, 95.
Paying interest, as waiver of, 96.
Receiving security as waiver of, 97, 98, 99 to 102.
Taking assignment, waives, 97, 98, 99 to 102.
confession of judgment, 97 to 102.
Whether security taken is ample to protect endorser, 99, 100.
Security of endorser at time of endorsement, 101.
between endorsement and maturity of paper, 101.
after maturity, 102.
whether security taken to pay note, 103.
Consideration for waiver of, 104, et seq.
Waiver of, as affected by statute of frauds, 109.
PRIMA FACIE:
Promise of endorser to pay, of knowledge of laches, 90, 92.
Payment, evidence of demand and protest, 95.
part payment, as, 96.
Note, evidence of payment, 159.
PRIOR INSURANCE:
Condition against, waived by conduct, 287.
Knowledge of, by agent, 287, 288.
Condition against, waived by taking premiums, 287, 288.
by issuing and delivering policy, 287, 288.
Breach of condition against, renders policy voidable, 287.
PRIORITY:
Priority of mortgage, accepting second as waiver of, 128.
Waiver of, does not destroy mortgage, 129.
Misrepresentation of mortgagee waives, 129.
Release of mortgagor from personal liability, 129.
Waived by silence, 130.
by extension of time, 130.
520 INDEX.
[References are to sections.]
PRIVILEGED COMMUNICATIONS:
Giving evidence of, 190.
Between attorney and client, 191.
Waiver of, by administrator of client, 191.
by partner, 191.
by conduct, 191, 193.
by attorney's signing will, 192.
mortgage, 192.
waiver may be, how, 154.
May be oral, 193.
Client becoming witness, 195.
Between physician and patient, 196.
waived by attorney, 196.
assignee, 196.
heir-at-law, 196.
guardian, 196.
waived by implication, 197.
calling physician as witness, 197.
failing to object, 197.
patient testifying, 197.
waived by other acts, 197.
Between husband and wife, 198.
statutory provisions for, 198.
waived by testifying, 198.
by failing to object, 198.
by other acts, 198.
PROCESS:
Guardian cannot waive for infant, 10.
Attorney cannot waive for infant, 11.
Summons not essential, 352.
Function of, 352.
Waived by general appearance, 352.
Defects in, waived by appearance, 353.
Not waived by special appearance, 353.
Waived by answering to merits, 353, 356.
Defendant ignorant of defects, 354.
Service of, set aside, when, 355.
Illustrations of waiver of, 357, 359.
Defects in, waived by proceeding to trial, 358.
contra, 358.
Exceptions to, must be properly saved, 358.
Waiver of, after judgment, 359.
In wrong name, waiver, 360.
Special appearance, not waiver of, 362, 363.
what is special appearance, 363, 364.
appearance under protest, 364.
Exemption from service of, 366.
Who are exempt from, 366, 368.
exemption from, must be claimed, 366, 368.
waived by entering appearance, 366.
PROMISE:
Of marriage, broken by marriage to another, 30.
Executory, mere promise, unless on consideration, 4.
By endorser to pay note, 76, 78, 79.
New, by endorser, to pay, must be with knowledge, 81.
INDEX. 521
[References are to sections.]
and unconditional, 83.
New, implied from asking time, 84.
On condition, must be accepted, 85.
By endorser ignorant of facts, no waiver of demand, etc., 88.
presumes knowledge, 90, 91.
Burden of showing knowledge at time of, 92.
Implied from acknowledgment of debt, 220.
as waiver of statute of limitations, 220.
to pay, as waiving statute of limitations, 222.
part payment as, 224.
must be voluntary, 224.
payment of interest as, 224.
PROOF; PROOFS:
Burden of, presumption shifts, 81.
Of demand and protest, waived, 91.
Burden on endorser to show laches of holder, 92.
contra, 93.
Of loss under insurance policy, 324.
waived by conduct, 324, 327, 328.
by denying liability, 325.
by refusing payment on other grounds, 326.
by demanding arbitration, 327.
by silence, 328, 331.
defects in, waived unless objected to, 328, 329, 331.
failure to return, 330.
contra, 331.
objection on other grounds, 332.
not filed in time, 333, 334.
waived by conduct, 333, 334.
whether agent may waive, 335, 336.
whether waiver of may be oral, 337.
contra, 338.
PROTEST:
For benefit of drawer or endorser, 72.
Waived orally or in writing, 73, 75.
or by conduct, 73, 81.
Statutory provisions as to, 73.
Waiver of, on face of instrument, 74.
in endorsement, 75.
Waived by promise to pay, 76, 81, 83, 89.
Waiver of, after endorsement, 78.
by extension of time, 78, 84, 87.
by instructions not to protest, 78.
Waiver at maturity of paper, 79.
by admitting liability, 79.
Presumed from conduct of endorser, 81, 90, 91.
Waiver of, after maturity of paper, 82.
by asking delay of suit, 84.
not by asking renewal, 89.
nor part payment, 89.
Proof of, waived, 91.
Ignorance of legal effect of failure in, 94.
Waived by payment, 95.
Payment prima facie evidence of, 95.
522 INDEX.
[References are to sections.]
Paying interest, as waiver of, 96.
Receiving security, as waiver of, 97, 98, 99.
Taking an assignment, as waiver of, 97, 98, 99.
Taking confession of judgment, as waiver of, 97, 98, 99.
Whether security ample to protect endorser, 99 to 101.
Security taken at time of endorsement, 101.
between endorsement and maturity, 101.
after maturity, 102.
when taken to pay note with, 103.
Consideration of waiver of, 104, et seq.
Waiver of, as affected by statute of frauds, 109.
PUBLIC POLICY:
Waiver of exemptions, against, 183, 184.
Against, to deny jury trial, 394.
QUANTUM MERUIT:
No recovery on, unless contract performed, 18.
From part performance, 19.
Contractor may recover on when prevented from performance,
26.
Entitled to recover on, when work accepted, 42.
REQUEST:
(See: Instructions; Practice.)
RATIFY; RATIFICATION:
Of fraud, 66.
Of voidable sale, 68.
Election of, final, 69.
Acts of, 71.
Infants may, contracts, 8.
Of foreclosure sale, by redemption, 145.
Of fraudulent subscriptions, by acquiescence, 237.
Waives irregularities in corporate meetings, 242.
Silence is, 242.
Of irregular assessments, 245.
Of acts of agents in waiving payment of premiums, 311.
Of act of tort-feasor, 344.
Of fraud, 346.
REAL ESTATE MORTGAGES:
Secures debt, not note, 118.
Not changed by change in form of debt, 118.
Mortgagee has several remedies, 119, 121.
Not waived by personal judgment, 119.
nor levy of execution, 120, 121, 122, 123.
Levy on equity of redemption, 121, 124.
Waived by taking other security, 125.
by accepting new mortgage, 125.
intention of parties, 126.
Payment of, by taking new mortgage, 126.
by renewal, 126.
not waived by suit on note, 127.
nor by judgment, 127.
whether waived by attachment, 127.
by delay in enforcing, 128.
INDEX. 523
[References are to sections.]
Second, as waiving priority, 128.
Waiver of priority, does not destroy lien, 129.
Priority waived by misrepresentation, 129.
Release of mortgagor from personal liability, 129.
Waiver of priority by extension of time, 130.
Breach of conditions, in, 131, et seq.
Payment of interest, 132.
Default of mortgagor waived by conduct of mortgagee, 132.
Foreclosure of, waived by extension of time, 132, 133, 134.
Default in paying taxes or insurance, 135.
or part of principal, 136.
Entry to foreclose, waived by conduct, 137.
Possession is foreclosure of, 138.
Entry under, waived by judgment, 138.
by other conduct, 139.
waiver must be by holder of, 140.
Foreclosure sale, waiver of by agreement, 141.
by extension of time, 141.
payment or part payment, 141.
Foreclosure sale, right to set aside, waiver of, 143.
Redemption waives irregularities in sale, 145.
waived by other conduct, 146, 147.
REASONABLE TIME:
Rescission must be in, 70.
What is, depends on facts, 70.
Infant must disaffirm in, 8.
Mortgagor has, to pay after default, 134.
to set aside sale, 143.
Failure to endorse vendor's lien within, 173.
Exemptions must be claimed within, 184, 185.
Redemption must be in, 210.
For declaring forfeiture under insurance policy, 315.
REASONABLE VALUE:
Compensation for partial performance, 19.
REDEMPTION:
Equity of, not attachable, 112.
levy of execution, 121.
sale of, 121, 124.
Foreclosure sale may be set aside within time for, 144.
Waiver of right to vacate sale by, 145.
In mortgage, cannot waive, 199, 200, 201, 204.
even though such be intention, 200.
in deed, as mortgage, 201.
by separate instrument, 202.
In absolute conveyance, 203.
From deed of trust, 204.
Waived by agreement after mortgage, 205, 206, 207, 208.
must be voluntary, 206.
by conveyance to mortgagee, 207.
by parol agreement, 209.
Statute of frauds affecting, 209.
Is equitable right, 210.
Must be in reasonable time, 210, 212.
524 INDEX.
[References are to sections.]
Time for, provided by statute, 211.
Lost by laches, 212.
By other conduct, 213.
Must be consideration for waiver of, 208, 218.
with knowledge, 214.
RELINQUISHMENT:
Waiver is, of right, 1.
REMEDY; REMEDIES:
Election of one, waiver of others, 65.
Inconsistent, choice of, 68, 69.
Under mortgage, 119, 121, 127.
Attachment and lien cumulative, 169.
In tort, or on implied contract, 343.
choice of one, waives other, 343.
RENT:
Acceptance of, by landlord waives forfeiture, 53.
Payment of, condition subsequent, 60.
Acceptance of, waives default of tenant, 62.
Payment of, acquiesced in by landlord, 62, 63.
Accepting, not a waiver of future defaults, 63.
Acceptance of, from sub-lessee, 64.
landlord must have knowledge of subletting, 64.
RESCISSION:
Waived by accepting payment, 40.
Of contract induced by fraud, 66.
Receipts under contract must be returned on, 66.
Waived by action to enforce contract, 67.
by paying purchase-price, 67.
by attaching goods sold through fraud, 68.
Delay in, fatal, 70.
Must be in reasonable time, 70.
Making payments waives, 71.
Asking extension of time as waiver of, 71.
Remaining in possession waives right of, 71.
Of contract for subscription to corporations, 237.
Selling property waives, 345.
RULING; RULINGS OF COURT:
Exceptions to, 441, et seq.
must specify grounds and ruling, 441, 442.
Each must be excepted to, 443.
Excluding evidence, 443.
Admitting evidence, 444.
On non-suit, must be excepted to, 451.
On demurrer to evidence, 454.
On instructions given, exceptions to, 460.
Denying motion for new trial, 472.
INDEX. 525
[References are to sections.]
BALE:
Waiver of, in foreclosure, 141.
by agreement, 141.
by extension of time, 141.
accepting payment, 141.
or part payment, 141.
Right to set aside foreclosure, waived, 143.
by laches of mortgagor, 143.
Redemption waives irregularities in, 145.
Accepting surplus, waives defects in, 146.
Irregularities in, waived, 147.
SECURITY:
Receiving by endorser, as waiver of demand and protest, 97.
98, 99, 100, 101.
Whether taken by endorser, ample, 99, 102.
Taken at time of endorsement, 101.
Between endorsement and maturity of paper, 101.
after maturity, 102.
Whether taken by endorser to pay note, 103.
Taking other, as waiver of mortgage lien, 125.
taking new mortgage as, 125.
Mortgagee taking after entry, waiver, 140.
Taking, waives carrier's lien, 152.
statute of limitations, 223.
SELF-CRIMINATION:
(See: Crimination of Self.)
SERVICE:
Of process, waived by appearance, 352, 353.
Not waived by special appearance, 353.
Set aside, when, 355.
Illustrations of waiver of, 357, 359.
Waived by answering, 358.
by proceeding to trial, 358.
answering over, held no waiver, 358.
Objections to defects, must be saved, 358.
Waiver of, after judgment, 359.
In wrong name, waiver, 360.
Not waived by special appearance, 362, 363.
what is special appearance, 364.
appearance under protest, 364.
Exemption from, 366.
who are exempt, 366, 368.
exemption must be claimed, 366.
waiver by permitting default judgment, 366.
by entering appearance, 366.
Of garnishment writ, 385.
SHARES:
On subscription, 227.
Conditions in, waived, 228.
By silence, 228.
Conditions in, waived by conduct, 230.
by payment on, 230, 232.
by part payment on, 231, 232.
526 INDEX.
[References are to sections.]
Fraud or misrepresentation in subscription, 233, et seq.
Waiver of written subscription, 235.
of defects or irregularities, 235, 236.
Forfeiture of, for non-payment, 246.
enforcing, waives right to suit, 247.
waived by delay in enforcing, 246.
Transfer of, must be on books, 249.
Powers of assignor and assignee, 249.
Irregularities in, waived by corporation, 250.
by recognizing assignee, 250.
defects in waived by assignee, 250.
Where legal title rests, 251.
Consent of directors to transfer, 252.
waiver by custom, 252.
Lien on, how created, 253.
by custom, 253.
is waived, if not asserted, 254.
purchaser ignorant of, 254.
not waived by taking security, 254.
Certificate reciting fully paid, 255.
Certificate should show lien, 256.
Defects in transfer waived by registration, 257.
by giving credit, 257.
SILENCE:
By landlord, waives forfeiture, 54.
Not sufficient as a waiver, when, 2.
As waiver of priority of mortgage, 130.
Waives statute of frauds, 177.
Conditions in subscriptions, waived by, 228.
Is ratification of irregular acts of corporations, 242.
Of insurer, waives breach of condition, 278.
Not waiver of vacancy of premises, 294.
Waiver of additional insurance, 301.
As waiver of notice of loss, 320.
defective in form, 323.
As waiver of proofs of loss, 328, 329, 331.
Not a waiver of limitation for suit, 342.
SINGLE MAN:
Waiver of exemptions by, 184.
SPECIAL APPEARANCE:
(See: Appearance.)
SPECIFIC PERFORMANCE.
No tender of purchase-price necessary in, 49.
Action for, waives forfeiture, 56.
STATUTE OF FRAUDS:
Liable on part performance of contract, 26.
As affecting waiver of presentment or protest, 109.
Waiver of vendor's liens, not within, 173.
Provisions of, 175.
Defense of, not self-operative, 176.
May be waived by conduct, 176.
Plaintiff need not plead compliance with, 177.
INDEX. 527
[References are to sections.]
Statute, matter of proof, 177.
Personal right of defendant, 177.
Defendant waives, by silence, 177.
Defendant must plead and prove, 177, 178.
Under the general issue, 178, 179.
Cannot be first raised in instructions, 179.
Raised by objection to evidence, 179.
Not raised by admission of making contract, 179.
Waived by defending solely on other grounds, 180.
. Not waived by administrator, 180.
Waiver of, is permanent, 181.
As defense on cross-bill, 181.
Cannot be first raised on appeal, 181.
or motion for new trial, 181.
nor on second trial unless on first, 181.
In waiver of equity of redemption, 209.
STATUTE OF LIMITATIONS:
Guardian cannot waive for infant, 9.
Delay for period for enforcing mortgage, 128.
Belongs solely to debtor, 215.
Waived by agreement or conduct, 215, 216.
Consideration for waiver of, 217.
Forbearance to sue, as waiver of, 217.
Waiver of, creates new period, 218.
by acknowledgment of debt, 219.
by statute, 219.
Suit barred in definite time, 220.
Acknowledgment to waive, must be promise to pay, 220.
implied promise to pay, 220.
requisites of, 221.
Promise to pay as waiver of, 222.
Waiver by letters, 223.
by giving check, 223.
by giving security, 223.
part payment as, 224.
must be voluntary, 224.
by payment of interest, 224.
by failing to plead, 225.
not in criminal cases, 226.
Must be asserted before verdict, 226.
Plea of, in action in tort, 351.
STATUTE; STATUTES:
Regulating exemptions, 185.
To be followed, 185.
Homestead exemptions, 187, 189.
As to privileged communications, 191.
Provisions by as to communications between husband and
wife, 198.
Provisions for redemption, 211.
Provisions of, as to statute of limitations, 219.
Jury trial, right to by, 394.
528 INDEX.
[References are to sections.]
STATE:
Right to forfeit charter of corporation, 258, et seq.
waived by permitting corporatfon to continue, 258.
waiver, question of intention, 258.
Illustrations of waiver, 259, 260.
cases where not waived, 261.
STOCK:
(See: Shares.)
STOCKHOLDER'S MEETINGS:
Waiving notice of, 231.
To be regularly called, 241.
Irregularity in, may be waived, 242.
must be by all members, 242.
waived by attendance, 242.
by subsequent ratification, 242.
Notice of, cannot be waived, 243.
contra, 244.
STOPPAGE IN TRANSITU:
Right to, waived when right to rescind waived, 71.
SUBSCRIBER:
Waiver by, of condition of subscription, 227.
must know of rights, 228.
may be by silence, 228.
by conduct, 230.
by subscribing prior to incorporation, 230.
acting as director, 230.
voting at meetings, 230.
paying calls, 230, 232.
waiving notice of meeting, 231, 243-4.
Fraud in subscription by, 233, et seq.
Waiver of written subscription by, 235.
of irregularities in subscription, 236.
SUBSCRIPTIONS:
On condition, 227.
Waiver of condition, 227.
must be with knowledge, 228.
may be by silence, 228.
by conduct, 230,
acting as director, 230.
voting at meetings, 230.
paying calls, 232, 230.
Waiving notice of meeting, 231.
Fraud or misrepresentation in, 133, et Beq.
Waiver of written subscription, 235.
of defects in, 235.
of irregularities in, 235, 236.
Fraud makes voidable, 237.
waived by acquiescence, 237.
acts waiving, 238.
SUBSTANTIAL PERFORMANCE:
Not sufficient for recovery, at common law, 16, 17.
INDEX. 529
[References are to sections.]
SUMMONS:
(See: Process.)
SURRENDER:
Waiver is, of right, 1.
Of possession, waives lien, 148.
of common carrier, 149, 150.
must be voluntary, 150.
of inn-keeper, 153.
Of property, as waiver of exemptions, 185.
TAXES:
Non-payment of, by mortgagor, 135, 144.
TENDER:
Law of, must be followed, unless waived, 46.
To whom made, 46.
Requisites of, 46.
Condition may be coupled with, 46.
What is waiver of, 47.
Money, necessary to produce in, 47.
Formalities of waiver, 47.
Refusal to accept on one ground, waiver of others, 47.
Medium of, 47.
Need not be made if other party refuses to accept, 48.
Failure of, waived by failure to object, 48.
Waiver may be before or after tender, 49.
Declaring contract ended, waiver of, 49.
Prevented, waiver of, 50.
Of purchase-price in specific performance, not necessary, 49.
Waived by later acceptance, 50.
Not waived by demand for larger sum than offered, 61.
nor by failure to object, 51.
nor by uncommunicated intention not to accept, 61.
TESTIMONY:
Giving, waives privileged communication, 194.
Of patient, waives privilege, 197.
As waiver of privilege between husband and wife, 198.
Of accused, waives privilege, 399.
Of incompetent witness, 419.
TIME:
Whether essence of contract, 36.
not in equity, 36, 37.
Is of essence when so intended, 37.
Reasonable, where not provided for, 37.
If of essence, default discharges contract, 381.
If not of essence, reasonable time to be given, 38.
Where essence of contract, may be waived, 39.
Extending, waiver by, 42.
Reasonable time, thirteen years not, 42.
Waived, if party hindered in performance by other, 45.
where change is directed, 44.
depends on intention of parties, 45.
not waived by acceptance, 45.
Of tender, waived, 47.
B. L. W.— 34
530 INDEX.
[References are to sections.]
Of waiver of tender, 49, 50.
Waived by proceeding under contract, 56.
House to be built in certain time, forfeiture enforced, 68.
Rescission must be in reasonable, 70.
Asking extension of, waiver of right to rescind, 71.
Infant, must avoid contract in reasonable, 8.
Request for, by endorser, waives demand, etc., 78.
Agreement to extend, by endorser, 87.
Extension of, as waiver of priority of mortgage, 130.
Of non-payment of interest, 132.
Extension of, as waiver of foreclosure sale, 141.
as waiving mechanic's lien, 170.
Reasonable, allowed for redemption, 210, 211.
Fixed by statute for redemption, 211.
Suit barred in certain time, 220.
To pay premiums, waiver of, 309, 310, 314.
Notice of loss under policy out of, 323.
Proofs of loss not filed in, 333.
Waiver of, by conduct, 334.
For objections (See: Objections).
For exceptions (See: Exceptions; Practice).
TITLE:
Breach of condition as to, waived by insurer, 279, et seq.
by delivering policy, 279, 280, 281.
Change in, 291, et seq.
contrary to policy, waiver of, 291.
by accepting premiums, 291.
endorsing on policy consent to change, 291.
TORTS:
Right to sue in, or on implied contract, 343, 349.
Choice of one, waives other, 343.
only where property converted to money, 343.
May disaffirm act of tort-feasor, 344.
may affirm act, 344.
Fraud in contracts, waiver of, 345.
Deceit, not waived by accepting payment on note, 345.
how waived, 346.
Right of rescission, 347.
Conversion, action for, 348.
May waive, and sue on contract, 348.
No right to set-off, 349.
What recovered in action in, 349.
illustrations of, 350.
Election between, and contract, shown only by pleading, 351.
results of, 351.
Plea of infancy in suit on, 351.
of statute of limitations, 351.
of exemptions, 351.
Election in, irrevocable, 351.
TRIAL:
(See: Practice.)
INDEX. 531
[References are to sections.]
USE:
As acceptance of performance of contract, 12.
No waiver of defects, if involuntary, 13, 14.
USE OF PREMISES.
Forbidden, by policy of insurance, 286.
renders policy void, 286.
knowledge of insurer as to, 286.
waiver, by delivering policy, 286.
subsequent to delivery of policy, 297, 298.
not waived by silence of agent, 297, 298.
nor failure to cancel policy, 297.
by consent of agent, 298.
VACANCY:
Of premises, knowledge of by insurer, 285.
Breach of condition against, in policy, 285.
waived by delivering policy, 285.
after delivery of policy, 293.
whether waived by agent, 293.
endorsing consent on policy, 293, 294.
not waived by silence, 294.
VARIANCE:
By parol, of written instrument, 76.
Between pleading and proof, 429, 433, 440.
advantage of, taken on motion, 440.
must be in lower court, 440.
objection to evidence on other grounds, 440.
when objection to be made, 440.
VENDEE:
Accepting payment, waives forfeiture by, 56.
Fraud of, waived by judgment against, 67.
Note of, as waiver of lien, 172.
VERDICT:
Directing, 455.
Right of waived by introducing evidence, 455.
may move second time for, 455.
Exceptions to instructions after, 468.
Objections to, must be made promptly, 469.
on appeal, 469.
must be specific, 469.
no exception necessary, 469.
VENDOR:
Default of in payment, waived, 56.
Accounting with vendee, waives forfeiture, 56.
Lien of, waived by taking note, 172.
collateral security, 172.
mortgage, 172.
notes of a third person, 172.
waiver need not be in writing, 173.
failing to enforce in reasonable time, 173.
procuring judgment, 174.
attachment, 174.
execution, 174.
burden of proving waiver, on vendee, 174.
532 INDEX.
[References are to sections.]
VENDOR'S LIENS:
Waiver of, 172, et seq.
by taking vendee's note, 172.
collateral security, 172.
mortgage, 172, 173.
notes of a third person, 172.
not to be encouraged, 173.
need not be in writing, 173.
Procuring judgment as waiver of, 174.
attachment, 174.
execution, 174.
burden of proving waiver on vendee, 174.
VENUE:
Objection to, must be raised before trial, 379.
waived by conduct, 379.
by not objecting, 380.
by appearance, 380.
by stipulation for removal, 380.
by filing answer, 380.
by moving for continuance, 381.
WILL; WILLS:
Attorney signing, waives privilege of client, 192.
Revoking, waives privilege of patient, 196.
WITNESS; WITNESSES:
Client becoming, as waiver of privilege, 195.
Accused, becoming, waives privilege, 399.
has same rights as others, 399.
Failure to administer oath to, 416.
waiver of, 416.
Depositions of, 417.
defective notice, waiver of, 417.
irregularities, in, waived, 417.
objections to, to be made at time of taking, 418.
Incompetency of, must be objected to, 419.
as soon as learned, 419.
party calling, cannot make, 419.
not waived by cross-examining, 419.
Crimination of self, 420, et seq.
what is the privilege, 420.
tendency to criminate, 420.
privilege waived unless claimed, 421, 423.
when to be claimed, 422.
whether attorney may claim for, 423.
extent of waiver of, 424.
testifying before grand jury, 425.
at coroner's inquest, 425.
Competency of, question waived by general objection, 437.
by failure to except, 446.
WRITTEN INSTRUMENT:
Varying terms of, 76.
Endorsement of, 76.
Waiver of redemption to be by, 29.
WAIVER:
(SEE THE VARIOUS TITLES UNDER THIS INDEX, FOR.)
UNIVERSITY OF CALIFORNIA LIBRARY
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OCT121978
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