In Western Transmission Corp. v. Colorado Mainline, Inc., A. J. Curtis & Company entered into a contract to construct a pipeline for Western Transmission Company. When the pipe reached the worksite, Colorado Mainline discovered it was not the size or quality specified in the contract, so additional expense in the construction would result. At the time of such a breach, the injured party may choose one of several courses of action. He may (1) terminate the contract, (2) rescind it and bring an action for damages, or (3) waive the breach by either promising to continue performance or by actually continuing performance. Although a promise to continue performance may be withdrawn, absent estoppel or consideration, the general rule is that when he makes the election by actual performance his choice is final and cannot be withdrawn. Therefore, Mainline's right to continue performance upon condition coupled with the right to assert the prior breach as an excuse after the subsequent performance is not as "elementary" as the court treated it.
Samuel P. Baird,
Rights of an Injured Party upon Continuing Performance Subsequent to a Breach of the Contract,
47 Neb. L. Rev. 593
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