Fuller v. Brown
| Decision Date | 29 July 1892 |
| Parties | FULLER v. BROWN et al. |
| Court | New Hampshire Supreme Court |
Exceptions from Rockingham county.
Assumpsit by A. O. Fuller against John H. Brown and others for breach of contract in building flues of chimneys too small. There was a verdict for plaintiff, and defendants except. Overruled.
There was evidence tending to show that the plaintiff occupied the house, and knew of the breach of the contract, for some two years or more before the date of his writ, without expressing to the defendants any objection to the size of the flues. The court declined to instruct the jury that "if the plaintiff, with knowledge of the defects complained of, occupied the house for two or three years, without objection that the same was not constructed according to the contract, or if the facts and circumstances as shown by the evidence are such that you are satisfied he ought to have had such knowledge, then his acts amount to an acceptance of the building under the contract and he cannot recover," and the defendants excepted. The plaintiff introduced evidence tending to show that during this period (the two or more years) "he was engaged in endeavoring to ascertain what was the trouble with the chimney, and to remedy it if possible."
Henry A. Shute, for plaintiff.
E. G. Eastman, for defendants.
The question of waiver was properly submitted to the jury on the evidence, as a matter of fact for their determination. "In a general way, waiver may be said to occur whenever one in possession of a right conferred either by law or by contract, and knowing the attendant facts, does or forbears to do something inconsistent with the existence of the right, or of his intention to rely upon it, in which case he is said to have waived it, and he is estopped from claiming by reason of it afterwards." Bish. Cont § 656. But in such a case the question of waiver is one of fact for the jury. Fox v. Harding, 7 Gush. 516. 520; Bank v. Magruder, 7 Pet 287. Exception overruled.
CARPENTER, J., did not sit The others concurred.
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...v. Construction Co., supra. Whether it is an acceptance is generally a question of fact (Gray v. James, 128 Mass. 110; Fuller v. Brown, 67 N. H. 188, 34 A. 463; Colby v. Franklin, 15 Wis. 311), and therefore provable by parol evidence. The right of cross-examination is protection to the adv......
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...v. Construction Co., supra. Whether it is an acceptance is generally a question of fact (Gray v. James, 128 Mass. 110; Fuller v. Brown, 67 N.H. 188, 34 A. 463; Colby v. Franklin, 15 Wis. 311), and provable by parol evidence. The right of cross-examination is protection to the adverse party ......
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City of Portsmouth v. Nash, 84-152
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