H. M. Wade Manufacturing Co. v. Lefkowitz

*453 BeogdbN, J. Substantially tbe case is this: A manufacturer of store fixtures and the store owner agree in writing for the purchase and installation of certain fixtures, made to order. The written contract excludes verbal modification, eliminates the right of an agent to change the agreement, and further provides that the use of the property or any portion thereof for a period of five days constitutes an acceptance of same as complying with all the terms and specifications of this contract and all claims for damages, errors, or shortage not filed within that time. There is evidence that the equipment was materially defective and oral complaint made during the progress of installation. Repeated promises were made by the general manager of the vendor that all defects would be remedied. The purchaser, acting upon such assurances, continues to pay and then declines to pay the balance, and suit is instituted by the vendor. The law as expounded in this jurisdiction has declared with unbroken uniformity that, nothing else appearing, all prior negotiations are presumed to be merged into a written instrument thereafter executed by the parties, and that the written word so chosen shall abide'unless and until the writing is modified, set aside or rescinded upon grounds deemed by the law as sound and adequate. Notwithstanding, it is also well established that a written contract may be waived or abandoned. The general principles establishing such rights are classified in Bixler v. Britton, 192 N. C., 199, 134 S. E., 488. The doctriné of waiver, in proper cases, is now as firmly established as the doctrine of the rigidity and inflexibility of the written word. For instance, it is stated in Highway Commission v. Rand, 195 N. C., 199, 141 S. E., 892: “Provisions in a contract may be waived.” A waiver has been variously defined and applied. See Makuen v. Elder, 170 N. C., 510, 87 S. E., 334; Allen v. Bank, 180 N. C., 608, 105 S. E., 401. An extensive discussion of the principle is found in Manufacturing Co. v. Building Co., 177 N. C., 104, 97 S. E., 718. The court assembles various definitions of the term, including the following from Herman on Estoppel: “A waiver takes place where a man dispenses with the performance of something which he has a right .to exact. A man may do that not only by saying that he dispenses with it, that he excuses the performance, or he may do it as effectually by conduct which naturally and justly leads the other party to believe that he dispenses with it. There can be no waiver unless so intended by one party, and so understood by the other, or one party has so acted as to mislead the other.” And further, “the intent to waive may appear as a legal result of conduct. The actuating motive, or the intention to abandon a right, is generally a matter of inference to be deducted with more or less certainty from the external and visible acts of the party and all the accompanying circumstances of the transaction, *454 regardless of wh.eth.er there was an actual or expressed intent to waive, or even if there was an actual but undisclosed intention to the contrary. The decisions declaring intent to be the essence of waiver recognize that the intent may be inferred from a party’s conduct.” Moreover, it is further said: “Since intent is an operation of the mind it should be proven and found as a fact and is rarely to be inferred as a matter of law.” See, also, Fairbanks v. Supply Co., 170 N. C., 315, 86 S. E., 1051; Ferry Co. v. Fairbanks-Morse & Co., 201 N. C., 485. In the case at bar Webb, disclosing the wide range of his authority to act for the plaintiff, said: “I am secretary and treasurer of the Wade Manufacturing Company and am the next man in rank after Mr. Wade in the management of the company. I occupy the position of general manager in Mr. Wade’s absence. I regularly deal with matters connected with the business of the corporation with Mr. Wade’s full knowledge and - authority.” The evidence of defendant, construed in a favorable light, tends to show that Webb came to his place of business fifteen or twenty times; that repeated promises were made by him to repair defects in the equipment and frequent assurance was given that the complaints of defendant would be arranged in a satisfactory manner. No mention was made in these conferences of the provisions of the written contract, and particularly of that clause prescribing that the use of the fixtures for a period of five days constituted an acceptance of same; nor was mention made of the provision in the conditional sales agreement that all claims for damages for defects “must be presented in writing to the vendor within ten days from the receipt of said goods.” Was the conduct of Webb, whose authority as general agent is established by the evidence, of such a nature and quality as to warrant an inference of waiver or intention to waive the rigid clauses of the written instruments? This inquiry must be submitted by proper issue and instruction to a jury. Consequently, the peremptory instruction of the trial judge must be held for error. New trial.