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Braugh v. Phillips - 557 S.W.2d 155 (Tex. Civ. App. 1977)

Rule:

It is clear that performance of conditions precedent to a contract can be waived by either words or deeds. Waiver, as it is commonly understood, is an intentional release, relinquishment, or surrender of a known right. It is essential that the right exist at the time of waiver that the person charged with waiver has actual or constructive knowledge of the right or privilege involved and that he intends to relinquish the right involved.

Facts:

Two mares owned by B. F. Phillips, Jr. were bred to a stallion owned by Roger S. Braugh, d/b/a Braugh Ranches. Each of the breeding contracts provided for a refund of the stallion service fee if a live foal did not result from the mating. The refund was conditioned upon notification of Braugh by telegraph or certified mail within 48 hours of an abortion by the mare or the failure of the mare to produce a live foal. In the trial court, Phillips contended in his pleadings that no live foals resulted from the matings; that all conditions precedent had been complied with by him; and if not, that compliance had been waived by Braugh. Braugh contended that Phillips had not performed the conditions precedent and that consequently, under the terms of the two breeding contracts, he was under no obligation to return the service fees. The trial court entered judgment on the verdict that Phillips recover the service fees, interest, and costs.

Issue:

Was there a waiver on the part of Braugh with regard to the strict compliance with the notification requirements of the breeding contracts?

Answer:

Yes

Conclusion:

The Court affirmed the trial court. The Court held that the jury was entitled to infer from a letter written by Braugh to Phillips and from telephone conversations between Braugh and Phillips that upon return of breeding certificates accompanied by a certification of a veterinarian that the mares were not pregnant that refund or another opportunity for breeding would be provided. The Court held that the evidence developed Braugh's intent to waive strict compliance with the notification requirements of the breeding contracts.

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