Appeal by defendant from Pridgen, Judge. Judgment entered 10 April 1978 in District Court, Harnett County. Heard in the Court of Appeals 29 May 1979.
Parker, Judge. Judges Mitchell and Martin (Harry C.), concur.
The defendant first assigns error to the trial court's denial of its motion for a directed verdict and judgment notwithstanding
the verdict. Defendant contends that the evidence shows as a matter of law that plaintiff breached the contract by ceasing to drive the tractor after 18 October 1976 and by allowing the payments on the tractor to become two months in arrears, thus establishing defendant's right to repossess the vehicle on 6 February 1977 pursuant to the terms of the contract. We do not agree.
First we note that the transaction that is the subject of this action was a sale of goods within the purview of G.S. Chap. 25, Article 2. G.S. 25-2-102. In essence, the transaction was a sale of the tractor in consideration of payments of money and delivery of haulage services by the plaintiff.
From the evidence presented the jury could find that for approximately three and one half months the defendant acquiesced in the substitution of plaintiff's son for plaintiff as driver of the vehicle after plaintiff announced to defendant's president his intention to go out and get another job. This acquiescence by defendant, if found by the jury, constitutes waiver of the agreement in the contract which provided that the plaintiff would operate the tractor in conjunction with defendant's business. G.S. 25-2-208(3).
A waiver is sometimes defined to be an intentional relinquishment of a known right. The act must be voluntary and must indicate an intention or election to dispense with something of value or to forego some advantage which the party waiving it might at his option have insisted upon. The waiver of an agreement or of a stipulation or condition in a contract may be expressed or may arise from the acts and conduct of the party which would naturally and properly give rise to an inference that the party intended to waive the agreement. Where a person with full knowledge of all the essential facts dispenses with the performance of something which he has the right to exact, he therefore waives his rights to later insist upon a performance. A person may expressly dispense with the right by a declaration to that effect, or he may do so with the same result by conduct which naturally and justly leads the other party to believe that he has so dispensed with the right.
Should the jury find that defendant accepted the substitution of plaintiff's son for plaintiff as driver, the defendant could not now successfully assert that the substitution constituted a breach of the contract. This is so even though this was a personal contract. "Parties can be substituted in a personal contract when (1) the parties do not object, and (2) fully acquiesce in accepting the services performed by the substituted party." Rape v. Lyerly, 23 N.C. App. 241, 249, 208 S.E.2d 712, 716-17 (1974), aff'd, 287 N.C. 601, 215 S.E.2d 737 (1975).
Nor does the evidence establish conclusively that the plaintiff breached the contract by failing to make a $600.00 payment in either December 1976 or January 1977. The evidence shows that by mutual understanding of the parties from the contract's inception in July 1976 the defendant obtained each monthly $600.00 payment by taking out the payments from plaintiff's 70% share of the freight charges when settlement was made at month's end. This was done by defendant, the evidence shows, even though plaintiff's account always was in deficit. In December, 1976 and January, 1977 the defendant stopped withholding payments even though it continued in these months to make settlements with plaintiff. There is no evidence to show that defendant ever notified plaintiff that it was demanding a change in the method of payment.
It is true that the contract does not expressly require the defendant to obtain payment by withholding a portion of plaintiff's share. However, after the defendant had obtained payment in this way for five consecutive months, the plaintiff thereafter had a right to rely on the construction defendant had placed upon the contract ...