Fuller v. Brown
Supreme Court of New Hampshire
Assumpsit, for the breach of a contract for building a house, in that the chimney-flues were made smaller than the stipulated size. Verdict for the plaintiff. 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.
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Assumpsit, for the breach of a contract for building a house, in that the chimney-flues were made smaller than the stipulated size. Verdict for the plaintiff. 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…
1Opinion of the CourtBlodgett, J.
The question of waiver was properly submitted to the jury on the evidence as a matter of fact; for tlieir determination. “ In a general way, waiver maybe 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 tu have waived it, and he is estopped from claiming by reason of it afterwards.” Bish. C,on., s. 656. But in such a case the question of waiver is one of fact for thl jury. Fox…
2Cases cited1 opinion
- Union Bank of Georgetown v. MagruderSupreme Court of the United States · 1833
3Cited by3 opinions
- Emery v. Caledonia Sand and Gravel Co.Supreme Court of New Hampshire · 1977
- City of Portsmouth v. NashSupreme Court of New Hampshire · 1985
- Colby v. CampbellSupreme Court of New Hampshire · 1900