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many equitable principles, is a disadvantage. Whatever may be the conclusion as to the desirable course for the law, it is at least true that everything is to be gained and nothing lost, by clearly recognizing the nature of a so-called waiver which recreates a liability, or an obligation which by its terms has already been extinguished or made impossible of performance. There is no class of cases so well suited as insurance cases to test the existence of any general principle that an agreement to give up technical defences is binding without promissory estoppel or consideration.

The conditions in insurance policies are often harsh and highly technical. The disposition to stretch the law to its utmost in order to favor the insured is constantly observable in the decisions of the courts; and whatever scope be given other principles, there are decisions which can only be explained on the assumption that some courts at least recognize as a principle of law that a technical defence may be surrendered without consideration or estoppel; 28 but the great weight of authority is clearly against the validity of such decisions.29

§ 694. Agreement to discharge from a liability already arisen. Methods provided by the law for discharging an obligor from a contractual liability already arisen are properly considered under the head of the Discharge of Contracts. The normal methods are release or accord and satisfaction. It is sure to lead to confusion of thought to apply the word waiver to such a situation; 30 and illustrations of this confusion may be found in

In this connection may be considered conditions in deeds providing by condition subsequent for forfeiture of the estate conveyed on breach of the condition. In Sanitary District . Chicago &c. Trust Co., 278 Ill. 529, 116 N. E. 161, a statement by the grantor, after breach of the condition, that he would not take advantage of it, was held irrevocable, so that the grantee acquired an indefeasible title. "See infra, §§ 763 et seq.

*In Willoughby v. Backhouse, 2 B. & C. 821, 824, Littledale, J., said: “The plaintiff does not, by the agreement

profess to waive his right of action. But even if he did, still it would not be a sufficient answer; for a right of action once vested can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done." See also De Bussche v. Alt, 8 Ch. D. 286, 314; Nesbitt v. McGehee, 26 Ala. 748; Southern States Co. v. Long, 15 Ala. App. 286, 73 So. 148; Snow v. Indiana &c. R. Co., 109 Ind. 422, 9 N. E. 702; C. F. Adams Co. v. Helman, 58 Ind. App. 394, 400, 106 N. E. 733; Stoner v. Chicago &c. R. Co., 109 Ia.

the cases.31 In a parol transaction there is no magic in a word. A "waiver" of an accrued right can only mean an agreement to surrender it for nothing. Such an agreement has no more validity than any other parol promise without consideration.32 Logically this same criticism might seem applicable to the rule that a right of action against an agent for an act done by him in violation of his contract with his principal may be discharged by ratification; 33 but when once the doctrine of fictitious relation of ratification is accepted, as it must be, there is no difficulty here.

$695. Laches.

Courts of equity refuse to give relief to a plaintiff who has been guilty of such delay in asserting a right of action after it

551, 80 N. W. 569; Rudell v. Ogdensburg Transit Co., 117 Mich. 568, 76 N. W. 380, 44 L. R. A. 415; and cases cited infra, § 1826.

In Fraser v. Young, [1913] 1 Ch. 272, a legacy had been left to trustees in trust to pay the plaintiff the income for her life, and thereafter to her son for life. On his death the capital and income were to fall into a residuary trust for others. Shortly after the creation of the trust the plaintiff wrote to one of the trustees saying she preferred to have no interest in the trust, and on being sent a check for the interest, replied "I made it very plain, I think, to you and Mr. Young, that I have no interest whatever in Miss Young's will, and wish for none, so do not let me be troubled further." The income was thereafter paid to the plaintiff's son. After some years, however, he died and the plaintiff thereupon demanded a future income. She was held entitled to it on the ground that she had received no consideration for giving up the income; that no one had changed position on the faith of what she had done, as she did not seek to disturb any past payments under the trust.

31 In Grubbe v. Lahay, 156 Wis. 29,

145 N. W. 207, 51 L. R. A. (N. S.) 358, the court held that even though the creditor of two joint debtors received no sufficient consideration in the promise of one of the debtors to assume the whole indebtedness which would support a promise to discharge the other, yet the creditor might "waive” his claim against the latter so as to preclude a subsequent suit against him. As the Wisconsin court holds with most others that payment of a lesser amount cannot discharge a greater (supra, § 120), the grotesque result is therefore reached that though an agreement to settle a ten dollar claim for nine dollars is invalid an agreement to "waive" it for nothing is effectual. So it has been held that where a contractor, after the expiration of the time limit prescribed by the contract, is permitted to continue to work and receives payment therefor, the owner cannot claim the liquidated damages for delay for which the contract provides. Pressey v. McCormack, 235 Pa. 443, 84 Atl. 427. See also Maltbie v. Gadd, 101 Wash. 483, 172 Pac. 557.

32 See supra, §§ 120, 130.
33 See supra, § 200.

has arisen as to make the assertion unjust. If he has led the defendant to believe that the right will not be asserted either by word or conduct, this circumstance will have an important bearing on the question of inexcusable delay; but as in the case of election, it is not essential that the defendant should have assented to any promise or proposition, or relied on any statement of the plaintiff. If the plaintiff said to the defendant every day from the time when his claim first arose "I am going to sue you very soon," so that no reliance on misleading conduct could be urged, delay might none the less be fatal if a court of equity thought the plaintiff had remained inactive so long that it would be an injustice to allow recovery. The doctrine of laches is peculiar to courts of equity and is not ground for an equitable injunction of legal rights. Accordingly it is only an equitable remedy to enforce a legal right, or an equitable right which is wholly unrecognized by a court of law which can be thus barred.34

§ 696. Whether intention is essential for gratuitous surrenders or for laches.

Where promises without consideration to discharge rights or assume liabilities are enforced under the name of waiver, the immateriality of intention is not so clear, as in some of the cases already considered, since the enforcement of such promises is anomalous and gives the promisee an advantage for which he has not bargained, and on the strength of which he has not changed his position. There is ground here for asserting that unless the promisor actually intended the surrender of a legal right of the existence of which he was aware, the promise should not be enforceable. It is to be observed, however, that such is not the law in regard to new promises by a surety to pay debts to which the law gives him a defense.35 And a new promise to pay a debt will extend the period of the Statute of Limitations irrespective of the debtor's knowledge of the existence of the statute or intentions with reference to it.36 As a final blow to the word "intentional" or "voluntary" in the traditional defi4 See Pomeroy, Equitable Remedies, 36 See §§ 160 et seq. and cases therein §§19-36. cited.

"See supra, § 157.

nition of waiver," it may be added that when waiver is given the last of the meanings suggested for it,38 that of laches, it cannot be admitted that intention is a necessary element. A negligent failure to assert an equitable right promptly is surely ground for denying an equitable remedy, with whatever intention or lack thereof the negligence may be accompanied. 39

§ 697. Knowledge of facts is necessary to make binding a promise to give up an accrued defence or to constitute laches.

If a so-called waiver, which is merely promise, unsupported by consideration or promissory estoppel, to give up a matured right or a defence, is ever valid (save in a few exceptional cases like the Statute of Limitations) it can only be so where the promisor clearly manifests an intent to promise with full understanding of the facts. It is perhaps with this sort of case chiefly in mind that the statement is commonly made that knowledge of the facts is necessary to an effective waiver; 40 and though no sharp boundaries can be drawn defining the requisites of laches or acquiescence, a court would be slow to refuse relief on this ground unless there was either actual knowledge of the facts or at least great negligence in the matter. 41

As the doctrine of laches is an equitable limitation of rights given by the law, all circumstances of the case may be considered, and here the knowledge or ignorance not only of facts but of legal rights is material. 42

37 See supra, § 678.

38 See supra, § 679.

39 See, e. g., Commercial Trust Co. v. L. Wertheim &c. Co., 88 N. J. Eq. 143, 151, 102 Atl. 448.

40 Crosthwaite v. Lebus, 146 Ala. 525, 41 So. 853; Pease v. Trench, 98 Ill. App. 24, affd. 197 Ill. 101, 64 N. E. 368; Patterson v. Nixon, 79 Ind. 251; Bannon v. Bannon Sewer Pipe Co., 136 Ky. 556, 119 S. W. 1170; Centennial Eureka Min. Co. v. Juab County, 22 Utah, 395, 62 Pac. 1024.

41 See Cholmondeley v. Clinton, 2 Meriv. 171, 362; Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888.

42 It is of this sort of case that the court in Vyvyan v. Vyvyan, 30 Beav. 65, 74, is speaking: "Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim." Similar statements are made in other cases: "The person who acquiesces must know exactly the nature of the thing to which his acquiescence is supposed to be given. He must know that, and he must know also the effect of his acquiescence." Strange v.

§ 698. Ignorance of the legal effect of known facts is not material except in the case of laches.

It is generally true in the common law that ignorance of the legal consequences of known facts is immaterial. Certainly such ignorance will not prevent appropriate conduct from amounting to a promissory estoppel or an election; and in cases where a new promise to pay an obligation subject to a defence imposes liability, though knowledge of the facts is essential, knowledge of their legal effect is not.43 In a few decisions, however, repetition of the formula that waiver is an intentional surrender of a known right has induced courts to suppose that there must be not only knowledge of the facts but of their legal effect.44

§ 699. Illustration of the foregoing principles: Building contracts.

The various ways in which defences and rights may be surrendered find frequent illustration. Though the discharge of vested rights by parol agreement is primarily dealt with in other portions of this book, 45 it is not possible wholly to dissociate treatment of waiver in the narrow sense to which it is desirable to confine it from cases where the other principles which have been distinguished from waiver in the preceding sections are involved; and in considering various groups of cases, commonly dealt with under the head of waiver, the fundamental principles underlying them will be sought. Those classes of cases especially will be considered which give the best opportunity for analyzing the different principles that may be involved in the varying situations where what is called a waiver occurs; though the instances thus noted are not the only ones that may be found. 46

Fooks, 4 Giff. 408, 413. "Acquies-
cence, without full and sufficient
knowledge and understanding of the
real nature and effect of the instru-
ment, can be of no avail." Prideaux
. Lonsdale, 9 Jur. (N. S.) 488, 491.
"See supra, §§ 157, 239.

"Globe Brewing Co. v. American Malting Co., 152 Ill. App. 194; Rosen

v. German Alliance Ins. Co., 106 Me. 229, 232, 76 Atl. 688; List v. Chase, 80 Ohio St. 42, 88 N. E. 120; Wilson v. Carpenter, 91 Va. 183, 192, 21 S. E. 243, 50 Am. St. Rep. 824.

45 See supra, §§ 120 et seq., infra, §§ 1793 et seq.

46 See supra, § 139.

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