"Waiver" is the voluntary and intentional relinquishment and abandonment of a known existing right, advantage, benefit, claim, or privilege, which, except for such waiver, the party would have enjoyed. A party who makes an unexplained delay in enforcing his contractual rights or who accepts performance in a manner different from that required by the contract has been held to have acquiesced to the nonconforming performance made by the other party.
Appellant potato broker challenged a lower court judgment that dismissed his amended complaint for breach of contract and awarded appellee potato grower damages on a counterclaim for payments withheld and for breach of contract. Appellant argued that the lower court erred in receiving parol evidence to establish an oral modification of the contract, and in failing to find that appellee waived his right to strict compliance with the payment provisions by his continued delivery after that provision had been breached. The court reversed the lower court judgment and remanded for further proceedings.
Is appellee precluded from cancelling the contract because of his previous waiver of default by appellant?
Appellee had no basis for his cancellation of the contract prior to the expiration of the payment period. In addition, the court held that appellee's right to cancel the contract due to appellant's breach of the payment provision was waived when he continued to make deliveries under the contract as this indicated an election on appellee's part to continue performance of the contract. The court concluded that it was error for the lower court to find that appellee could cancel because of default by appellant which appellee had previously waived.