WAIVER. The relinquishment or refusal to accept of a right. Cited Hecht v. Brandus, 4 Misc. 58, 23 N. Y. Supp. 1004.
The intentional relinquishment of a known right. Lehigh Val. R. Co. v. Ins. Co., 172 Fed. 364, 97 C. C. A. 62.
The intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Portland & F. R. Co. v. Spillman, 23 Or. 587, 32 Pac. 689. See iloldsworth v. Tucker, 143 Mass. 374, 9 N. E. 764; Montague's Adm'r v. Massey, 76 Va. 314; Bennecke v. Ins. Co., 105 U. S. 359, 26 L. Ed. 990.
In practice, it is required of every one to take advantage of his rights at a proper time; and neglecting to do so will be con sidered as a waiver. If, for example, a de fendant who has been misnamed in the writ and declaration pleads over, he cannot after wards take advantage of the error by plead ing in abatement ; for his plea amounts to a waiver. Failure of counsel, either in brief or oral argument, to allude to an assignment of error, is a waiver thereof ; American Fibre-Chamois Co. v. Fibre Co., 72 Fed. 508, 18 C. C. A. 662.
In seeking for a remedy, the party injured may, in some instances, waive a part of his right and sue for another: for example, when the defendant has committed a trespass on the property of the plaintiff by taking it away, and afterwards he sells it, the injured party may waive the trespass and bring an action of assumpsit for the recovery of the money thus received by the defendant; 1 Chitty, Pl. 90. A delay of two years in bringing an action in rem on a maritime lien, the vessel meantime having passed into other hands, is a waiver of the lien; The Asher W. Parker, 84 Fed. 832, 28 C. C. A. 224 ; but when ob jections are seasonably and appropriately made there can be no waiver; Lake Shore & M. S. Ry. Co. v. Ry Co., 116 Ind. 578, 19 N. E. 440; and mere indulgence or silent acquiescence in the failure to perform is never construed into a waiver, unless some element of estoppel can be invoked ; id.
In contracts, if, after knowledge of a posed fraud, surprise, or mistake, a party performs the agreement in part, he will be considered as having waived the objection; 1 Bro. P. C. 289.
When a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will; Cooley, Const. Lim. 219. In criminal cases this doctrine can be true only to a very limited extent; Cooley, Const.
Lim. 220. See JUICY.
The right of a waiver, while extending to almost all descriptions of contractual, statu tory, and constitutional privileges, is never theless subject to the control of public policy, which cannot be contravened by any conduct or agreement of the parties. Accordingly, all agreements will be held void which seek to waive objections to acts or defenses illegal at law; Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152 ; Bosler v. Rheem, 72 Pa. 54 ; or which are forbidden on the ground of public policy or morality; Green v. Wat son, 75 Ga. 471, 473, 45 Am. Rep. 479; Mor ley v. Ragan, 10 Bush (Ky.) 156, 159, 19 Am. Rep. 61; Crump v. Com., 75 Va. 922, 924.
Waiver is distinguishable from ratification. Ratification is an adoption of a contract made on one's behalf by some one whom we did not authorize, which relates back to the execution of the contract and renders it obligatory from the outset. Waiver is the renunciation of some rule which invalidates the contract, but which, having been intro duced for the benefit of the contracting party, may be dispensed with at his pleasure; Reid v. Field, 83 Va. 26, 29, 1 S. E. 395.
While the term "acquiescence" is some times used in the opinions to denote that species of waiver which arises by tacit con sent or by failure of a person for an unrea sonable length of time to act upon rights of which he has full knowledge, nevertheless it is a species of waiver and differs in mean ing only in that the term is limited in its application to one manner of waiver ; Ala bama C. Co. v. Equipment Co., 131 Ga. 365, 371, 62 S. E. 160. Waiver is distinguished however from election; id.; modification ; Clark v. West, 125 App. Div. 654, 110 N. Y. Supp. 110; release; id.; and estoppel; Shaw v. Spencer, 100 Mass. 382, 395, 97 Am. Dec. 107, 1 Am. Rep. 115.
In the absence of conduct creating an es toppel, a waiver should be supported by an agreement founded upon a valuable consid eration; United Firemen's Ins. Co. v. Thom as, 82 Fed. 406, 409, 27 C. C. A. 42, 47 L. R. A. 450; although a consideration, such as is necessary to support a contract, is not always essential ; Pabst Brewing Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563.
Waiver is a mixed question of law and fact. It is the duty of the court to define the law applicable to waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver as defined by the court; Nickerson v. Nicker son, 80 Me. 100, 105, 12 AU. 880.