LeNt v. B. & M. R.

• Decision Date: 31 March 1881
• Citation: 8 N.W. 431,11 Neb. 201
• Court: Nebraska Supreme Court
• Parties: LENT v. B. & M. R.

11 Neb. 201

8 N.W. 431

LENT

v.B. & M. R.

Supreme Court of Nebraska.

Filed March 31, 1881.

Error from Sanders county.

Wilson & Sessions, for plaintiff.

Marquett & DeWeese, for defendant.

LAKE, J.

This case, in principle, is not distinguishable from that of Reynolds v. B. & M. R. R. Co. 7 N. W. REP. 737, 2 Neb. 153, and much of what we said in deciding that case is applicable here. In this case, however, a formal contract had actually been made for the sale and purchase of the land in question, which contained stringent provisions, making, as counsel for the plaintiff concede, punctuality of payment essential, and, unless waived by the defendant, constituting a complete bar to a recovery of the damages sought. To show precisely the ground on which counsel for the plaintiff stand, in claiming there was a waiver here, we quote from their brief that, on the third day of March, 1876, “the plaintiff having made no payments since August 12, 1873, all of his rights, privileges, and improvements, under the contract, would have become forfeited if the defendant had made the election to cancel the contract and claim the forfeiture by reason of the non-payment. Instead of electing to do this they received from the plaintiff the sum of $170.98, the amount of the second payment on said contract, including interest to that date; also, the further sum of $60.27 on account of instalment due August 12, 1875. This, in law, was a waiver of the forfeiture in the contract by reason of the nonpayment when due.”

No one would contend, of course, that, as to the instalments received, there was not a waiver; but the argument of counsel goes further, and amounts to this: that the acceptance of payments overdue is a waiver of the matter of time, not only as to them, but also as to those falling due thereafter. Such, however, is not the law. The proposition is supported by neither reason nor authority. The simple act of receiving a payment after the day when the payee was bound to accept it, without more, is no excuse for laches as to future payments. The effect of the acceptance is exhausted upon the payment made, and, as to those following, the provisions of the contract are left to operate with unimpaired force. Phelps v. I. C. R. Co. 63 Ill. 468;Stow v. Russell, 36 Ill. 32;Green v. Green, 9 Cow. 46.

But was there any additional evidence before the jury of a waiver as to the two payments that fell due on the twelfth of August, 1876 and 1877? Nothing else is...