Sec 604

A promisee cannot insist on the non-performance of a condition precedent when that non-performance is imputable to himself.7 Thus, in the familiar case of a sale of goods to be paid for on delivery, if the purchaser notifies the vendor that he refuses to accept the goods, this relieves the vendor from the condition precedent of delivering the goods;8 and such, also, is the case where the vendor is asked by the purchaser not to deliver, or to postpone the delivery (though a default in delivery is not cured by a And so when waived.

Kugler v. Wiseman, 20 Ohio, 361; Lowry p. Barelli, 21 Oh. St. 324; subsequent request not to deliver);l and where performance on a later day is accepted as a substitute for performance on a prior day;2 and where on a contract to manufacture and deliver goods, the vendor is notified by the purchaser that he has changed his mind and will not accept the goods when ready.3 A waiver, however, is not to be implied from silence, unless the silence be of a party whose duty was at the time to speak.4 But performance of a particular thing is waived by the acceptance of a substitute for such particular thing;5 and this is the case with the waiver of conditions precedent in insurance.6 It should be added, that a party cannot enforce a performance upon the refusal of the other party to perform, and then rely on such non-performance as a ground for rescinding the contract.7 - The intention to waive must be established by language and conduct, and not by speculation as to intention.8

Swift v. Dewy, 37 Oh. St.___; Jones v. R. R., 14 W. Va. 514; Reynolds v. R. R., 11 Neb. 186; Crump v. Mead, 3 Mo. 233; Aller v. Pennell, 51 Iowa, 537; Smith v. Wheeler, 7 Oregon, 49; and cases cited infra, sec 712; supra, sec 312. That a party by disabling himself may make himself at once liable, see infra, sec 885 a.

1 Bradley, J., Peck v. U. S., 102 U. S. 65.

2 Borden v. Borden, 5 Mass. 67; Marshall v. Craig, 1 Bibb, 379; Shaw v. Hurd, 3 Bibb, 372.

3 Supra, sec 285.

4 Hill v. Green, 4 Pick. 114.

5 Supra, sec 579; infra, sec 712, 719.

6 Infra, sec 919; and see supra, sec 282 et seq.

7 Supra, sec 312, 325; infra, sec 891, 901, 945; Leake, 2d ed. 666; Benj. on Sales, 2d Am. ed. sec 566; Cooper v. Mowry, 16 Mass. 7; Betts v. Perrine, 14 Wend. 219; Whitney v. Spencer, 4 Cow. 39; Haden v. Coleman, 73 N. Y.

567; Swift v. Dewy, 37 Oh. St.------;.

Crump v. Meas, 3 Mo. 233; see Brown v. Slee, 103 U. S. 828; and see cases cited supra, sec 559; as to release, see infra, sec 1031 etseq.

8 Ripley v. McClure, 4 Ex. 345; Fitt v. Cassanet, 4 M. & G. 898. See Jackson v. Crysler, 1 John. Cas. 125; see infra, sec 994-5.

Sec 605

On a contract for labor, although the work, when a specific job, is to be completed as a condition precedent before payment,9 yet if the employer prevents the completion of the job, he becomes liable to the employee for damages for breach of contract.10 And, where the plaintiff agreed to build a barn for a fixed price, the defendant to supply the materials, it was held that where the barn was not completed in consequence of the defendant's failure to supply the materials, the plaintiff was entitled to recover for part performance.11 But as a general rule, "where the plaintiff' himself is On contracts of labor employee prevented by employer from working may recover.

1 Plevins v. Downing, L. R. 1 C. P. D. 220.

2 Warren v. Mains, 7 Johns. 476.

3 Cort v. R. R., 17 Q. B. 127; Frost v. Knight, L. R. 7 Ex. 111.

4 Gray v. Blanchard, 8 Pick. 292.

5 Porter v. Stewart, 2 Aiken, 427; Warren v. Mains, 7 Johns. 476; see Flannery v. Rohrmayer, 46 Conn. 558; see supra, sec 559; infra, sec 994 - 5.

6 Hadley v. Ins. Co., 55 N. H. 110; Bennett v. Ins. Co., 81 N. Y. 273;.

Hartford Ins. Co. v. Davenport, 37 Mich. 609.

7 Selway v. Fogg, 5 M. & S. 83; Allen v. Webb, 24 N. H. 278.

8 West v. Platt, 127 Mass. 367.

9 Infra, sec 716 et seq.; Leake, 2d ed. 667; Peeters v. Opie, 2 Wms. Saun. 346; Morton v. Lamb, 7 T. R. 130.

10 Pontifex v. Williamson, 1 C. B. 75; Planche v. Colburn, 8 Bing. 14; Moulton v. Trask, 9 Met. 577; Hall v. Rupley, 10 Barr, 231.

11 Hall v. Rupley, 10 Barr, 231. 799 to do an act to entitle himself to the action, he must either show the act done, or if it be not done, at least that he has performed everything that was in his power to do."1 And as will be hereafter seen,2 when a term of service is broken into by the employer, the employee may recover on a quantum meruit. It will be also seen, that the duration of a term of service, when not limited in writing, is determined by the facts of the particular case, as modified by local usage.3.