refusal is made on account of the insufficiency of the amount or for other reasons, an objection on account of the condition cannot afterwards be raised.47 But here, as always, where waiver is based on estoppel, it is essential that had there been no deception, the performance would have conformed to the requirements of the law. It is vital that "the objections if stated could easily have been obviated." 48 Otherwise "It

is clear. . . that [parties] are not, by their rejection of the tender on an insufficient ground, precluded from supporting the rejection on other and valid grounds." 49

§ 744. Application of the principle to contracts of sale, insurance and employment.

Similar decisions have been made where goods have been tendered under a contract to sell. An objection to them on one ground has been said to preclude later objection on other grounds; and sometimes courts have failed to observe the importance of the objection later asserted having been remediable at the time when prior objection was taken.50 The matter is

any objection which he may have to the instrument, money or property tendered, or he will be deemed to have waived it. If the objection is to the terms of an instrument, he must specify the kind and the terms which he requires, or be precluded from objection afterwards." Gilbert v. Mosier, 11 Ia. 498, 500.

Richardson v. Jackson, 8 M. & W. 298; Moynaham v. Moore, 9 Mich. 9, 77 Am. Dec. 468. So by statute in California, Kofoed v. Gordon, 122 Cal. 314, 54 Pac. 1115, and see infra, § 1819.

Board of Trustees v. Spitzer, 255 Fed. 136; Kofoed v. Gordon, 122 Cal. 314, 54 Pac. 1115; Leask v. Dew, 102 N. Y. App. D. 529.

"McCardie, J., in Manbre Saccharine Co. v. Corn Products Co., [1919] 1 K. B. 198, 204, citing statements of Brett, J., in Sanders v. Maclean, 11 Q. B. D. 327, 333, and of Bailhache, J., in Furness v. Rederiaktiegolabet Banco, [1917] 2 K. B. 873, 876.

50 Ginn v. W. C. Clark Co., 143 Mich. 84, 106 N. W. 867, 107 N. W. 904; Littlejohn v. Shaw, 159 N. Y. 188, 53 N. E. 810; Hess v. Kaufherr, 128 N. Y. App. D. 526, 112 N. Y. S. 832; De Hoff v. Aspegren, 96 N. Y. Misc. 681, 161 N. Y. S. 53. [Cf. International Cheese Co. v. Garra, 176 N. Y. S. 523; Miller v. Ungerer (N. Y. App. D.), 176 N. Y. S. 850]; Howe Grain Co. v. Taylor (Tex. Civ. App.), 147 S. W. 656; Wright v. C. S. Graves Land Co., 100 Wis. 269, 274, 75 N. W. 1000. See also Goodman v. Purnell, 187 Fed. 90, 109 C. C. A. 408; Noble v. Pirson (Mich.), 169 N. W. 860; Honesdale Ice Co. v. Lake Lodore Imp. Co., 232 Pa. 293, 81 Atl. 306. In Linger v. Wilson, 73 W. Va. 669, 80 S. E. 1108, 1109, the court said:"It must be conceded that objection on the part of defendant to receiving the grain because plaintiffs had not complied with a former contract is no ground upon which defendant can excuse himself from complying with this

correctly put in an Ohio decision.51 "We do not deny that under some circumstances a refusal to accept goods for a stated reason may operate as a waiver of other objections, which might have been properly made. This may be so in cases where the silence of the purchaser and his conduct operate to mislead the seller and prevent him from protecting himself; in other words, where the conduct of the buyer would raise an estoppel against him.52 But when the buyer has absolutely rejected the goods, for whatever reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the vendor, cannot be construed as a waiver of the buyer's right to insist on his plea of non-performance on those grounds." 53

In insurance law the same principle finds application. Where the insurer takes a particular objection to proofs of loss or puts a refusal to pay upon a particular ground, this will operate as a waiver of objections to the proof which could have been remedied if they had been specified.54 Even silence after receipt of proof may have this effect, 55 or a non-committal an

latter distinct contract of purchase. And it is quite apparent in the case that the matter of quantity was a remote and secondary consideration by defendant. He deliberately stated a single objection to receiving the shipment. That single objection was the alleged failure of plaintiffs to comply with a former contract. He expressed a willingness, however, to take the full shipment if his claim made under the alleged former contract was considered in settlement. Thus he inferentially waived objection to the excess of quantity."

51 List v. Chase, 80 Ohio St. 42, 50, 88 N. E. 120.

52 Citing Johnson v. Oppenheim, 55 N. Y. 280, 281; Smith v. Pettee, 70 N. Y. 13, 16-17.

53 To the same effect are Mente v. De Witt Rice Mill Co., 251 Fed. 252, 163 C. C. A. 408; Petersburg Fire Brick & Tile Co. v. American Clay M. Co.,

89 Ohio, 365, 106 N. E. 33, 36. See also Tufts v. McClure, 40 Ia. 317; International Cheese Co. v. Garra, 176 N. Y. S. 523; Miller v. Ungerer (N. Y. App. D.), 176 N. Y. S. 850.

54 Globe & Rutgers Ins. Co. v. Prairie &c. Co., 248 Fed. 452, 160 C. C. A. 462; Brock v. Des Moines Ins. Co., 106 Ia. 30, 75 N. W. 683; Faulkner v. Manchester Assur. Co., 171 Mass. 349, 50 N. E. 529; First Nat. Bank v. American Cent. Ins. Co., 58 Minn. 492, 60 N. W. 345; Taylor v. Roger Williams Ins. Co., 51 N. H. 50; Weed v. Hamburg-Bremen Fire Ins. Co., 133 N. Y. 394, 31 N. E. 231; Kiernan v. Insurance Co., 150 N. Y. 190, 44 N. E. 698; Cummer Lumber Co. v. Manufac turers', etc., Co., 67 N. Y. App. Div. 151, 73 N. Y. S. 668; Sutton v. Am. Ins. Co., 188 Pa. St. 380, 41 Atl. 537; Virginia F. & M. Ins. Co. v. Goode, 95 Va. 762, 30 S. E. 370.

55 Great Western Ins. Co. v. Staaden,

swer.56 But a refusal after loss to pay a policy for an untenable reason, does not preclude the insurer from defending on other grounds which could not have been remedied had the refusal originally stated them. 57 So, "If when [a servant] was discharged there existed an uncondoned justification therefor, regardless of whether it was then known to [the master] or whether the reason assigned for such discharge was sufficient, [the master

is not] precluded by the first or any notice of discharge from proving an existing ground not therein referred to." 58

In general it must be true that upon tender of performance by the promisee, the promisor may refuse to perform "without specifying any ground, and insist upon any available ground." 59 But where the objection is purely technical, such as tendering a certified check instead of legal tender,60 or making proof of loss under an insurance policy in a somewhat informal manner, even the general refusal of the promisor may be deceptive and, therefore, justify the court in regarding the objection as waived when the promisee in ignorance of the ground of objection allows so much time to elapse that it cannot be remedied.61

$ 745. Conditions in insurance policies.

An insurance policy is a typical conditional contract. The insurer is seeking nothing from the insured except the premium,

58 Thomas v. Beaver Dam Mfg. Co., 157 Wis. 427, 147 N. W. 364, 365, citing: Loos v. Geo. Walter Brewing Co., 145 Wis. 1, 6, 129 N. W. 645, 140 Am. St. Rep. 1052; Iudependent L. Ins. Co. v. Williamson, 152 Ky. 818, 154 S. W. 409; Von Heyne v. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524; Crescent Horse Shoe Co. v. Eynon, 95 Va. 151, 27 S. E. 935. See further, infra, § 839.

59 Devens v. Mechanics' & Traders' Ins. Co., 83 N. Y. 168, 173.

60 See infra, § 1819.

61 In Findeisen v. Insurance Co., 57 Vt. 520, 524, 527, the court said:— "An unqualified refusal by the company to pay the loss upon other specified grounds, made before the expiration of the time within which it was the duty of the assured, by the terms of the policy, to file his proofs of loss, is an act from which the triers may find a waiver of such proofs. See authorities cited in-Lyon v. Travellers' Ins. Co., 31 Alb. L. J. 59, 55 Mich. 141,

20 N. W. Rep. 829; and in Mosley v. Vt. M. F. I. Co., 55 Vt. 142. ...

"We think the refusal of the company to return it [proof of loss] upon request, for the purposes named, Findeisen offering to remedy the only objection to it which was specifically pointed out, and its further refusal to point out the other defects which it purposed insisting upon on request, and in such manner as to give the plaintiffs opportunity to seasonably furnish a proof of loss which should satisfy the company and the requirements of the policy, as they offered to do, ought to be held a waiver by the defendant of the objections now sought to be insisted on, or else to estop the defendant from now urging any of said objections. It was such conduct as might well have had a tendency to prevent the plaintiffs from furnishing a proof of loss to which the company could not have made objection, either on the score of seasonableness, or upon some other ground, technical or substantial." See also infra, § 833.

which is generally paid in advance for the whole or a portion of the term. For the rest, the interest of the insurer is merely to avoid performance on his own part except under exactly defined circumstances. His normal and usual method of protecting himself, therefore, is by providing that the policy shall not be paid except on certain conditions. In policies of life insurance such conditions are no longer numerous; but in insurance of other kinds, especially fire insurance, the conditions are many. A full discussion of these is impossible, but the principles governing their construction and excuse can be shown. They relate to the character of the property insured, its condition and occupancy: the keeping of dangerous articles; changes in title or possession; incumbrances; methods of doing business; precautions against loss; the taking of additional insurance; the non-payment of premiums or assessments.

In marine insurance, the sea-worthiness of the vessel insured; the nature of the voyage and deviation therefrom are usual conditions.

In life insurance, truthful answers to inquiries concerning age and physical cohdition, and other circumstances affecting probability of life; change of residence, or occupation, as well as payment of premiums are usual.

In policies of insurance of other sorts, such as accidents to the insured, liability for accidents caused by the insured; the fidelity of employees, and the solvency of debtors, appropriate conditions are inserted.

§ 746. Meaning of void and voidable.

It is not uncommon in many conditional contracts, and is especially common in insurance policies, to provide that unless a certain condition or conditions are complied with, the contract shall be void. If the condition in question is clearly for the advantage of one party only, it is usual to construe the word void as meaning voidable by that party.62 Where the

42 See for instances of this construction in insurance policies,-Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689; Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869; Insurance Co. of Pa. v. Indiana Reduction Co. (Ind.

App.), 117 N. E. 273; German Insurance Co. v. Shader, 68 Neb. 1, 93 N. W. 972, 60 L. R. A. 918; Oakes v. Manufacturers' Ins. Co., 135 Mass 248; Titus v. Glens Falls Ins. Co., 81 N. Y. 410, 419; Horton v. Home Ins.