or dispute his vendor's title, so long as he retains possession of the property; 73 for the possession can only rightfully be held under the contract, and therefore while he retains possession the purchaser necessarily elects to continue the contract. The familiar principles that a tenant is estopped to deny his landlord's title, and a bailee that of his bailor, are based on the same fundamental principle. So in contracts for the sale of goods, one who voluntarily continues to deliver installments of goods in response to the buyer's orders after the buyer's right has expired by lapse of time cannot refuse without an additional breach by the buyer to fill orders for all the goods for which the contract provided.74 An employer who is entitled to discharge an employee because of the latter's temporary illness, but who nevertheless continues the employment after the illness, in the absence of agreement to the contrary must pay for the period during which the employee was ill.75 Similarly in insurance law, the acceptance of a premium or assessment, liability for which exists only on the assumption that the policy is to continue in force, is an election not to terminate it because of a known breach of condition or defence." 73 Burnett v. Caldwell, 9 Wall. 290, 19 L. Ed. 712; Union Stave Co. v. Smith, 116 Ala. 416, 22 So. 275, 67 Am. St. Rep. 140; Shorman v. Eakin, 47 Ark. 351, 1 S. W. 559; Coates v. Cleaves, 92 Cal. 427, 28 Pac. 580; Goodwin v. Markwell, 37 Fla. 464, 19 So. 885; Harris v. Amoskeag Lumber Co., 101 Ga. 641, 29 S. E. 302; Page v. Bradford-Kennedy Co., 19 Ida. 685, 115 Pac. 694; Lesher v. Sherwin, 86 Ill. 420; Towne v. Butterfield, 97 Mass. 105; Curran v. Banks, 123 Mich. 594, 82 N. W. 247; Mitchell v. Chisholm, 57 Minn. 148, 155, 58 N. W. 873, 874; Pershing v. Canfield, 70 Mo. 140; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130; Nance v. Rourk, 161 N. C. 646, 77 S. E. 757; McPherson v. Johnson, 69 Tex. 484, 6 S. W. 798; Cutler v. Babcock, 79 Wis. 484, 48 N. W. 494. 74 Schulder v. Edward R. Ladew Co., 178 N. Y. App. D. 458, 165 N. Y. S. 504. 75 Cuckson v. Stones, 1 E. & E. 248; Bassett v. French, 10 N. Y. Misc. 672, 677, 31 N. Y. S. 667. 76 Insurance Co. v. McDowell, 50 Ill. 120, 99 Am. Dec. 497; Bennett v. Union Central L. Ins. Co., 203 Ill. 439, 67 N. E. 971; Watts v. Equitable Mut. Life Assoc., 111 Ia. 90, 82 N. W. 441; Mosiman v. Benefit Association, 82 Kans. 670, 674, 109 Pac. 413; Powell v. Factors', etc., Ins. Co., 28 La. Ann. 19; Williams v. Maine State Relief Assoc., 89 Me. 158, 36 Atl. 63; McNicholas v. Prudential Ins. Co., 191 Mass. 304, 77 N. E. 756; Reed v. Bankers' Union, 121 Mo. App. 419, 99 S. W. 55; Clifton v. Mutual Life Ins. Co., 168 N. C. 499, 84 S. E. 817; Chicago, etc., Life Soc. v. Ford, 104 Tenn. 533, 58 S. W. 239. § 688. After election to continue a contract in spite of a known excuse, the excuse cannot be asserted. The principle is general that wherever a contract not already fully performed on either side is continued in spite of a known excuse, the defense thereupon is lost and the injured party is himself liable if he subsequently fails to perform," unless the right to retain the excuse is not only asserted but assented to.78 Bentsen v. Taylor, [1893] 2 Q. B. 274; Panoutsos v. Raymond Hadley Corp., [1917] 1 K. B. 767, 2 K. B. 473; Bierce v. Hutchins, 205 U. S. 340, 346, 51 L. Ed. 828; German Sav. Inst. v. DeLa Vergne Refining Co., 70 Fed. 146, 17 C. C. A. 34; Jeffrey Mfg. Co. v. Central Coal & Iron Co., 93 Fed. 408; Miami &c. Mfg. Co. v. Robinson, 245 Fed. 556, 563, 158 C. C. A. 22; Andrews v. Tucker, 127 Ala. 602, 29 So. 34; Sausalito Bay Land Co. v. Sausalito Improvement Co., 166 Cal. 302, 136 Pac. 57; Herr v. Sullivan, 25 Colo. 190, 54 Pac. 637; Dean v. Connecticut Tobacco Corp., 88 Conn. 619, 92 Atl. 408; Grippo v. Davis, 92 Conn. 693, 104 Atl. 165; King v. Lipsey, 142 Ga. 832, 83 S. E. 957; McArthur Bros. Co. v. Whitney, 202 Ill. 527, 530, 67 N. E. 163; Big Run Coal Co. v. Employers' Indemnity Co., 163 Ky. 596, 174 S. W. 25; Prentiss v. Lyons, 105 La. 382, 29 So. 944; Orem v. Keelty, 85 Md. 337, 36 Atl. 1030; Jones v. Brown, 171 Mass. 318, 50 N. E. 648; Barnard v. McLeod, 114 Mich. 73, 72 N. W. 24; Neosho City Water Co. v. Neosho, 136 Mo. 498, 38 S. W. 89; Edward Thompson Co. v. Vacheron, 69 N. Y. Misc. 83, 125 N. Y. S. 939; Schulder v. Edward R. Ladew Co., 178 N. Y. App. D. 458, 165 N. Y. S. 504; Griggs v. Renault Selling Branch, 179 N. Y. App. D. 845, 167 N. Y. S. 355; Benjamin Harris Co. v. Appelbaum, 172 N. Y. S. 709; Massey v. Becker (Oreg.), 176 Pac. 425; In re Moore's Est., 191 Pa. 600, 43 Atl. 474; Linch v. Paris, etc., Elevator Co., 80 Tex. 23, 15 S. W. 208; Loftis v. Pacific Mut. L. Ins. Co., 38 Utah, 532, 114 Pac. 134; Long v. Pierce County, 22 Wash. 330, 61 Pac. 142; Garbes v. Roberts, 98 Wis. 173, 73 N. W. 995. On this principle it was held in Kunze v. Jones, 200 Mich. 453, 166 N. W. 904, that an architect empowered by contract to adjudge the fulfilment of a builder's obligation could not stand by and allow the builder to proceed after bad work had been discovered, but must reject the work at once. 78 In Northwestern Mutual Life Ins. Co. v. Amerman, 119 Ill. 329, 337, 10 N. E. 225, 59 Am. Rep. 799, the court said: "If, as before substantially stated, the assured paid the premium under the belief, fairly induced by the acts and declarations of the agents of the defendant company, that the policy was to be in force while he continued in the prohibited occupation, the acceptance of the money by the company would estop it from insisting upon the condition of the policy as a defence. The mere act, however, of receiving or collecting the premium, by the insurance company, with knowledge of an existing right of forfeiture, has, so far as we know, never been held to estop the company from setting up such forfeiture, if the assured had no reason fairly to conclude, from the acts and declarations of the company, or its agents, that the forfeiture had been or would be waived, when he made the payment of the premium, or unless the payment was made in reliance upon the validity of his policy, The case may be thought distinguishable where a party to a bilateral contract knowing of a breach of condition or defence which would excuse him, continues to act under the contract in some other way than receiving benefits from the other party,—for instance, continues to render performance himself; as if an employee having just ground for refusing to continue performance of his contract of employment, and, knowing the facts excusing him, nevertheless renders some further services. Is he thereby precluded from subsequently asserting the breach as an excuse for his own failure to perform the contract? This depends in theory upon the inquiry whether any element of estoppel is necessary to constitute a final election." The employee is entitled to choose between the prize of further employment with the pecuniary and other advantages that may flow from it, and the prize of freedom from his own liabilities under the contract. By continuing work he has manifested an intent to take the former, but he has benefited rather than injured the employer who will suffer no greater injury if the choice is revocable, than he would have suffered if the employee had refused promptly to continue performance. It seems probable that the election is final. Even silence when it is likely to mislead the other party and induce him to believe that further performance of the contract will be accepted, may amount to an election.80 induced by the acts, declarations or silence of the company. If the assured knew or understood that the company intended to insist upon the forfeiture for breach of the condition of the policy under consideration, if he came to his death by reason of or while in an employment in violation of such condition, and with such knowledge, for the purpose of keeping his policy from lapsing for non-payment of the premium, so that it might be in force after he should quit such employment, as suggested by the company's State agents, or for any other reason he might deem to his advantage, paid the premium, the company might rightfully accept it for the purpose for which it was paid, without being guilty of fraud in setting up the breach of such condition, which it had never consented to waive, and which the assured knew it intended to insist upon." 79 See supra, § 686. 80 In Morgan v. McKee, 77 Pa. 228, 231, the court said: "It was their duty to act promptly on the occurrence or discovery of the breach, and if they were guilty of undue delay, they must be regarded as having waived their right to rescind and elected to treat the contract as still subsisting: Lawrence v. Dale, 3 Johns. Ch. R. 23; Pearsoll v. Chapin, 44 Pa. 9; Negley v. Lindsay, 67 Pa. 217, 5 Am. Rep. 427; Leaming v. Wise, 73 Pa. 173. They could not take the chance of a rise If an obligation is purely unilateral, however, and all consideration for it has already been received, a continuance of performance by the promisor after circumstances have occurred that would justify him in refusing to go on, while still retaining the consideration, involves no election. It is at most evidence of a promise to perform, unsupported by consideration. If relied on by the promisee to his inquiry the injury must be, is such a promise binding? If it is given effect under the name of waiver, boundaries should be fixed which will enable it to be known when gratuitous promises are binding under this inclusive designation. In the law of insurance such a situation is not infrequently presented. But accepting a benefit for which the consideration has been entirely rendered, though it may operate as an election not to rescind the executed transfer of consideration, where that is legally possible (as for example if it were induced by fraud), does not preclude a refusal to continue performance for the future, because even though the rest of the contract is abrogated, payment is still due for what has been done. Therefore, the receipt of such rent (or endeavor to collect it) as has become due before breach of condition by a tenant does not operate as an election by the landlord to continue the tenancy,81 since he is entitled to this rent even though the lease is terminated; and for the same reason acceptance of a payment abso in the market-price of petroleum, and then elect to rescind the contract or not as might be most for their advantage. They were bound to make their election within a reasonable time; and what is reasonable time or undue delay where the facts are not disputed, is a question of law to be determined by the court. Leaming v. Wise, supra. Reasonableness in such cases belongeth to the knowledge of the law, and is therefore to be decided by the justices: 1 Tho. Coke Litt. 644 (52 b). Did the defendants then elect to rescind the contract in a reasonable time? The petroleum was deliverable monthly, and the breach of which the complaint was made, was the plaintiff's failure to make the September de- lutely due under any contract does not preclude rescission of the contract for reasons existing and known when the payment was made.82 Nor will the compulsory continuance of a contract entered into by an agent operate as an election to ratify the agent's breach of duty in entering into the contract.83 A continuing breach of condition also is not necessarily excused permanently because, while it is still possible to perform the condition for the future, the injured party elects to go on with the contract.84 § 689. Waiver of condition not yet broken or defence not yet arisen. The peculiarity of the doctrine of waiver used in the narrow sense which seems desirable is that effect is given to a promise, express or implied in fact, when, in reliance thereon, action has been taken by the promisee though no consideration is given in exchange for the promise. Not all promises can thus be made enforceable, but a promise to forego the advantage not yet accrued of a breach of condition and sometimes of a breach of a promise may be. There has been a distinct tendency in 82 Chicago Washed Coal Co. v. Whitsett, 278 Ill. 623, 116 N. E. 115; Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593, 81 N. E. 574; De Vivo v. Gallerani, 174 N. Y. S. 13. 83 In Pacific Vinegar, etc., Works v. Smith, 152 Cal. 507, 511, 93 Pac. 85, the court said: "If an agent with ostensible authority to sell his principal's wheat, but under instructions to sell it for not less than a dollar a bushel, shall sell and deliver it for fifty cents a bushel, there is no power in the principal to rescind the sale. Shall the principal by accepting the fifty cents be held to have exonerated his agent from liability for the other fifty cents per bushel? Such a doctrine certainly does not commend itself and is not sustained. It is limited, so far as the agent is concerned, to those cases where there remains with the principal, after his first complete knowledge of the transaction, the power to rescind, and failing so to do he is properly charged with full acceptance of all the responsibilities of the contract, even to the exoneration of his agent, because, with the ability to rescind, if he had rescinded, the transaction would be at an end and nobody would be injured." The court cites in support of its position, Triggs v. Jones, 46 Minn. 277, 48 N. W. 1113; Bank of St. Mary's v. Calder, 3 Strob. (S. Car.) 403; White v. Sanders, 32 Me. 188; Goodale v. Middaugh, 8 Colo. App. 223, 46 Pac. 11; Williams v. Moore, 24 Tex. Civ. App. 402, 58 S. W. 593; Continental Ins. Co. v. Clark, 126 Iowa, 274, 100 N. W. 524. See further, supra, § 200. 84 Panoutsos v. Raymond Hadley Corp., [1917] 1 K. B. 767; Finnigan v. Worden-Allen Co., 201 Mich. 445, 167 N. W. 930; De Vivo v. Gallerani, 174 N. Y. S. 13; and see infra, § 741. |