
    George W. Gerrish vs. George W. Norris.
    If a party, who is, by his covenant, bound to receive a deed from another, makes specific objections to the deed, this is a waiver of all others which are of such a nature that, if stated by the party, they might have been obviated by him who was to deliver the deed. In such case, if the objection taken is removed, the others are to be treated as waived. •
    In an action for a breach of covenants entered into by the plaintiff and defendant, for mutua' conveyances of land, the defendant having refused to accept the deed tendered to him by the plaintiff, by reason of specific objections to the "deed taken by mm at the time of the tender, it is correct for the judge to instruct the jury that, if the defendant used language intended and calculated to convey to the plaintiff the idea that he waived all other objections, he would be estopped from setting up other objections.
    This was an action of covenant, tried in the court of common pleas, before Wells, C. J., and brought before this court by exceptions taken by the defendant.
    On the fourteenth day of February, 1849, the plaintiff and defendant duly executed an indenture under seal, whereby Gerrish agreed to make and deliver to Norris “ a good and sufficient quitclaim deed, with the usual covenants of warranty, from those claiming by, through or under him, and release of dower, of land and stable lying and being upon Prescott street, so called in said Lowell, thereby conveying, assigning and transferring all the right, title and interest to said Norris, which said Gerrish has or may have to said land and stable;” and in consideration of the above agreement, Norris agreed “to execute and deliver, or cause to be executed and delivered to Gen’ish, a good and sufficient quitclaim deed, with the usual covenants from those claiming by, through, or under him, of warranty and release of dower, of land and barn, situated, lying and being in Dracut, in said county of Middlesex, in Centralville, so called, adjoining land of Paul Perkins, on Walnut street, so called, in said Dracut, containing twelve hundred and one. third feet.”
    The plaintiff, to prove the performance of the covenants on his part, offered evidence tending to show that, previous to the commencement of this action, he had tendered to the defendant a quitclaim deed, with release of dower, the description in which was as follows: “ A certain tract of land situate upon Prescott street, in said Lowell, with a stable standing upon the same, said tract of land and stable being the same formerly occupied by Lawrence B. Norris, as a stable, and the same mentioned and described in a bond from Boyal Southwick to Cyril Coburn, recorded in Middlesex registry of deeds, which bond was assigned to said George W. Gerrish, and was, afterwards, by the request of the said George W. Norris, assigned to one Parker, of said Lowell; meaning and hereby intending to transfer to said George W Norris, all right, title and interest which I, the said Gerrish, have or may have to said land and stable; ” that the defendant said he did not know about the deed, as he was not much used to the conveyance of land, but that he would give the plaintiff' an answer next day; that, at this interview, the plaintiff offered, if there were any objections to the deed, to alter it, so as to make it satisfactory; that, the next day, the defendant called at the office of the plaintiff’s counsel, and said that he could not take the deed, for it stated untruly the fact, that he requested that the bond should be assigned to Parker, and because, since making the agreement, the plaintiff had conveyed all his interest in the land.
    There was also evidence tending to show, that the defendant also said, at the same time, that he would take a deed according to the bond; and other evidence bearing upon the question of waiver.
    The defendant admitted that the objections made by him, as above stated, were unfounded in fact.
    The presiding judge ruled, that the deed tendered by the plaintiff was not a compliance with certain covenants which were° mutual and dependent covenants, but these covenants were other than those which were objected to by the defendant, at the time of the tender.
    The plaintiff claimed that, by not taking the objection to the deed at the time it was tendered, which he now raised, the defendant must be considered as having waived all objections to the deed, but those then taken.
    Upon this question the presiding judge instructed the jury that, although the deed was not such as the defendant was bound to receive, yet if, from all the evidence, they were satisfied (the burden of proof being upon the plaintiff) that the defendant waived all objections to the deed, except those which he stated to the plaintiff, or that he used languag intended and calculated to convey to the plaintiff the idea that he waived all other objections, he would be estopped from setting up other objections to the deed in the present trial. To this ruling the defendant excepted.
    
      B. F. Butler, for the defendant.
    
      
      H. F. Durant, for the plaintiff.
   Dewey, J.

If a party, who is, by his covenant, bound to receive a deed from another, makes specific objections to the deed, this is a waiver of all others that are of such á nature that, if stated by the party, they might have been obviated by him who was to deliver the deed. In such case, if the objection taken be removed, the others are to be treated as waived. Todd v. Hoggart, Moody & Malkin, 128; Chitty on Contracts, (7th Am. ed.) 307, 310. Upon this more general ground, this case might perhaps have been disposed of. The case has been argued by the defendant more particularly upon objections to the instructions, in the precise form in which they were stated.

We do not understand that any objection is urged to the first branch of the ruling, “ that, if the jury were satisfied, from all the evidence, that the defendant waived all objections except the one stated, it was sufficient to entitle the plaintiff to recover,” but, upon the other branch of the instructions, “ if he used language intended and calculated to convey to the plaintiff the idea that he waived all other objections, he would be estopped from setting up other objections.”

This last clause seems to be little more than a commentary upon the evidence that would warrant a jury to find a waiver. If the party uses language suited or adapted by design, (both of which are definitions by lexicography of the word “ calculated,”) to express to the hearer his purpose of waiver, the jury might find such waiver, it would seem. Nor does the omission of the words, “ if the plaintiff had acted thereon,” necessarily affect the correctness of the ruling. If this had been properly a case of estoppel, set up against a third party, to defeat his right by reason of his acts or omissions, it might have been material to have introduced this element, that the other party had acted thereon. But, as a mere waiver between two parties to a contract, the instructions were correct, as to what would authorize the jury to find such waiver.

Exceptions overruled.  