177 N.C. 103 | N.C. | 1919
Tbe Court is of tbe opinion that tbis case bas been tried without any error in .tbe. Superior Court. Tbe charge must be taken as a whole, and, thus construed, we do not find that there bas been anything omitted or inserted to tbe defendant’s prejudice; nor do we think it is subject to criticism as being one-sided. '
Tbe jury must have found that tbe ten samples of sash were not sent to defendant to be fitted to tbe openings, but to be examined and inspected to see if they were made according to tbe plans and specificar tions, and as they were retained without objection tbe plaintiff bad tbe right to infer that they, were satisfactory and would be accepted as a compliance with tbe contract, both as to material and workmanship, except as to those defects specified in tbe conversation, at tbe mill and in tbe suggestions of Mr. Coughlin about tbe grooves and tbe beveling of tbe bottom of tbe sash, so as to fit them in instead of making them
The jury answered the first two issues and the fourth in favor of defendant, and the third issue was the important one in settling the question in controversy. As to this issue, the judge instructed the jury as follows: “The third issue is, ‘If not, did the Gallivan Building Company agree to accept said material as furnished by the plaintiff?’ The burden is on the plaintiff to show this by the greater weight of the testimony. You will answer the issue ‘Yes,’ otherwise you will answer it ‘No.’ ” It is true that immediately afterwards he did state the plaintiff’s ■ contention at some length, but he then gave the defendant’s contention, his opening sentence being, “Now, the defendant contends you ought to answer that (third) issue ‘No.’ ” He then stated at length the defendant’s view concerning it, and we cannot see-that the statement of the two contentions to the jury were not equally full, fair and impartial. The instruction as to the quality of the glass was not one-sided, when reference is made to the context of the charge upon the third issue. The judge had stated the plaintiff’s contention and at the end of the statement gave the instruction to which the exception was taken. He then stated the defendant’s contention as to the sash and the quality of the glass, and especially did he say that the defendant insisted that the issue should be answered in its favor — that is, “No.” The jury must have understood from all this statement, of the two contentions that if they found the facts to be as the plaintiff contended they would answer the third issue “Yes,” and if as the defendant contended, they would answer it “No.”
In an elaborate charge, slight inadvertence -not changing the sense nor calculated to mislead thé jury are not so substantial and prejudicial as to call for a reversal. We have held that if contentions are not properly stated, the attention of the court should then be called to the.omis
“Even if there is technical error, courts will not reverse when it is slight and it clearly appears that it is not substantial and could not have affected the result.” S. v. Davis, supra; Goins v. Indian Training School, 169 N. C., 737; Elliott v. Smith, 173 N. C., 265.
As to the requirement of knowledge on the part of the defendant of any defects in the sashes or glazing to constitute a waiver of them, it cannot be denied that such is the law, because a man cannot be said to waive that of which he has no knowledge, and waiver is largely a matter of intent. But the jury could infer, as they seem to have done, that the sash were sent to defendant for inspection and not for fitting, and that defendant had acquired by examination the requisite knowledge of any defects. The charge sufficiently covered this question. But the third issue did not, in terms, present the question of waiver, but that of acceptance, for its form is, “Did the lumber company agree to accept the material as furnished by the plaintiff ?” The judge properly placed the burden of this issue on the plaintiff, but if there had been any concealment of defects by it the burden of showing this would have been on the defendant. There was evidence of an acceptance, and the jury have found as a fact that there was one.
But upon the question of waiver it may be said that it takes place where one person dispenses with the performance of something which he has a right to exact of another, and it is said to be a technical principle introduced and applied by the courts for the purpose of defeating forfeitures. While it belongs to the family of estoppel and the doctrine of estoppel has a fundamental relation to it, being the foundation upon which it to some extent rests, they are nevertheless distinguishable terms, though it may be difficult to draw the distinction between them which will give to each a clear legal significance and scope, separate from and independent of the other, as they are not infrequently used by the courts as convertible terms, especially when dealing with insurance companies, and aid in the avoidance of forfeitures. There are, however, several essential differences between them, and they may be thus illustrated': Waiver is the voluntary surrender of a right, while estoppel is the refusal to permit its assertion because of the mischief that has been done. Waiver involves both knowledge and intention, the one being-essential to the other; an estoppel may arise where there is no intent to mislead; waiver depends upon what one himself intends to do, and involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has
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. It should clearly be made to appear by the evidence, and the best evidence of intention is to be found in the language used by the parties, though it may appear in their conduct. The true inquiry is what was done, said or written, and whether it indicated the alleged intention. The secret understanding or intent of the parties is immaterial on the question of waiver. As we have said, which is important in this case, the intention need not necessarily be proved by express declarations, but may be shown by the acts and conduct of the parties, from which it may reasonably be inferred, or even by nonaction on their part. Mere silence at a time when there is no occasion to speak is not a waiver, nor evidence from which waiver may be inferred, especially where such silence is unaccompanied by any act or conduct calculated to mislead.
•Briefly defined, therefore, waiver is the intentional relinquishment of a known right, either express or to be implied from acts or conduct. 29 A. &.E. Enc., 1091; 40 Cyc., 254 et seq. Bishop on Contracts, sec. 792, thus defines waiver: “It is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with
It is said in 29 A. & E., at pp. 1095, 1096: “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, regárdless of whether 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.” This is more like an estoppel. The intent, though, may be inferred by the jury. Rice v. F. & D. Co., 103 Fed., 427, 435.
The above definitions and illustrations - of this ever-recurring principle of the law will be met with frequently in the books, as above shown. The difficulty is in the application of the doctrine to any given case. Under the evidence and a.correct charge of the court, the jury have found that the sash were sent to defendant for inspection, so that defects, if any, might be noted, as they were to serve as models for the remaining lot. Certain defects were pointed out, and there being no further complaint the jury found that the others, if any, were waived. If they were concealed, so as not to be discoverable by a reasonable and careful inspection, the jury have not so found.
We repeat that the .issue involved was largely, if -not wholly, one of fact. The judge, we think,, fairly and understandingly presented the questions of law to the jury. If the defendant inspected the goods and had a fair opportunity to do so, and was not prevented from a discovery of any defects by concealment or otherwise (these being questions- for the jury'), and specified certain defects, the jury might infer knowledge and a waiver of any other defects. The fault, if any, was with the jury in finding the facts contrary to the weight of the evidence and the de
It must be certified that no reversible error appears in the record..
No error.