OPINION
Thе Bernalillo County Sheriff’s Officers Association and the County of Bernalillo entered into a contract concerning wagеs, hours and other terms and conditions of employment of the officers. The contract is dated October 7, 1975, and was effеctive from July 1, 1975 to July 1, 1977. The contract incorporated by reference the Bernalillo County personnel rules and regulations, specifically, Rule 312.1:
An employee required to remain at home or immediately available by telephonе to answer emergency service requests shall be paid equivalent to eight (8) hours pay at his regular rate for a sevеn (7) day period of stand-by duty. Stand-by time will not be considered time worked in the computation of regular and/or overtime hours.
Onе of the officers of the Association presented a claim in February of 1977 to receive pay accrued but unрaid under this provision of the contract. After the claim was denied, this officer, along with other appellees (officers), brought suit on July 29, 1977. They requested standby pay from January 1, 1977. The trial court found for the officers and the sheriff; the County (appellants) appealed, challenging the following findings of fact:
13. Plaintiffs [appellees] and each of them did not and have nоt waived their rights to be paid for stand-by duty in accordance with Supplementary Rule and Regulation 312.1.
14. No consideration exists for any alleged waiver of rights under Supplementary Rule and Regulation 312.1 by Plaintiffs [officers].
Appellants allege that sheriff’s officers are on duty twenty-four hours a day and
We must first consider the law of waiver, and then determine whether the faсts support the findings of the trial court that there was no waiver, since the findings of the trial court on waiver appear tо be mixed findings of law and fact. Hittson v. Chicago, R. I. & P. Ry. Co.,
The law of waiver is at best troublesome in its application. This Court has stated that it is the intentional abandonment or relinquishment of a known right. Clovis National Bank v. Thomas,
In the fact situation .before us, there is a duty on the part of thе obligor (appellants) to pay obligees, the officers, for the standby duty. The obligor did not make any such payments. The testimony at trial was that even as of the date of trial, neither the sheriff’s officers nor their supervisors knew whether the officеrs were entitled to payment for. standby time. There was at least constructive notice to the officers becausе they, as beneficiaries under the contract, had notice of its terms. The question then is whether a waiver exists here beсause of an implied promise on the part of the officers, without consideration, to release or discharge appellants from their duty to pay for standby time.
In Ed Black’s Chevrolet Center, Inc. v. Melichar,
To constitute a waiver, there must be an existing right, a knowledge of its existence, and an actual intention to relinquish it, or such conduct as warrants an inference of the relinquishment. It is a voluntary act аnd implies an abandonment of a right or privilege. In no case will a waiver be presumed or implied contrary to the intеntion of the party whose rights would be injuriously affected thereby, unless, by his conduct, the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended or consented to. (Citations omitted.)
In that case, an insurаnce company declared an automobile a total loss. It mailed a letter to Black (who held a security interest in the car), advising it of the total loss and that a draft was being sent to Black. It requested Black to have the purchasеr execute conveyance of title, and to release its security interest directly to a salvage compаny who purchased the car from the insurance company. Some days later Black received the draft, which was for a sum smaller than Black’s security interest. Black applied the draft to the secured indebtedness and made a claim for the balance. This Court upheld the trial court’s finding that Black had not waived its security interest in accepting the draft for a smaller amount and applying it to the larger secured indebtedness.
Similarly here, we cannot say that appellees waived their claims to payment for standby time merely by acceptance of paychecks which did not include standby timе. Further, and based upon the record in this case, we cannot say that appellees intended to relinquish their rights by not assеrting them for some sixteen to twenty months. Except for lapse of time in presenting the claim, there is no evidence brought tо this Court’s attention which would support a claim that they intended to waive their rights. Further, in order for waiver to apply under the tеst set out in Ed Black’s, supra, appellants must show that they were misled by the officers’ conduct to their prejudice, into the hоnest belief that
There was substantial evidence before the trial court to support a finding that there was no waiver in this case. The decision of the trial court is affirmed.
IT IS SO ORDERED.