Sessa v. Arthur ( 1903 )

Hammond, J.

The defendant insists that the plaintiff, by taking the deed conveying to him less than what the contract called for, and entering into the possession of the estate without making at the time any objection, waived as matter of law the right to insist upon further performance, and therefore cannot recover. Upon the statement of agreed facts, however, the trial court did not find a waiver, and that finding must stand unless the facts agreed show affirmatively as matter of law the existence of such a waiver.

We think that a waiver is not conclusively shown as matter of law. If; is to be noted that the waiver set up is not of a condition precedent, or of the time, or place of the performance of a contract. If it can be called a waiver at all, it is a waiver of the right to require the conveyance of all the estate which the defendant had agreed to convey. It is true that the plaintiff took the deed with the knowledge that it did not convey all he was entitled to receive, but whether he took it as a full and satisfactory performance of the contract, or as only a partial performance reserving the right to insist upon damages as to the part not performed, was a question of intention; and the burden of showing the waiver was upon the defendant. While there was evidence of a waiver, we cannot say that the court erred in the conclusion to which' it came on the question. It was all a question of fact upon the evidence. Taylor v. Cole, 111 Mass. 363.

Judgment affirmed.