The specific purpose of the first action was to recover a sum, as liquidated damages, on account of the alleged breach by respondent of certain terms of an agreement requiring him to deliver his seed crop of 1922 to appellant for marketing. The ultimate object for which the association was organized was the marketing of the alfalfa seed grown by its members; and the association agreement vested the association, acting by and through its board of directors, with power to undertake the marketing of such alfalfa seed. The terms of the marketing agreement were specifically set *Page 24 forth in the association agreement. Each of the members or subscribers to the association agreement promised and agreed to sign a marketing agreement or to be bound by the marketing agreement embodied in the association agreement. If the board of directors decided to follow the last alternative, it was provided that notice of its decision would be given each member. The association alleged that it "determined to proceed" and hold its members bound by the marketing agreement contained in the association agreement, which was a sufficient allegation of the exercise of its option.
To excuse the failure to give respondent the required notice the association alleged that respondent had at all times been fully aware of its failure to give notice and fully aware of all of its actions in carrying out the terms of the agreement by taking part in the organization meeting and other meetings of the association, by delivering his seed in 1921 and having it cleaned and marketed by the association, by demanding and receiving supplies from the association, by accepting all the benefits of membership for more than a year after the organization of the association and by treating the agreement in full force and effect.
It was, of course, necessary that respondent have notice that the association was operating under the marketing agreement contained in the association agreement so that he could abide by its terms, and accept its benefits. The notice was for his benefit. Nothing was necessary to be done by respondent to put the marketing agreement in force. The minds of the parties had already met as to the terms of the marketing agreement, and the mailing of notice that the board of directors had exercised the option given it to proceed under the marketing agreement, which they had embodied in their association agreement, was all that was required. If, therefore, as is alleged, respondent had actual notice, was aware that the association was operating under the marketing agreement with which he was familiar, and accepted the benefits alleged and actually delivered his 1921 crop of alfalfa seed to the association he waived the notice in writing. *Page 25
5 Page on Contracts, sec. 2659, sets forth the rule, citing authorities in its support, that:
"A condition precedent to the taking effect of a contract is said to be waived by the conduct of the party for whose benefit such condition is inserted in treating such contract as in effect, in spite of the breach of such condition."
See, also, Califoraia Raisin Growers' Assn. v. Abbott et al.,160 Cal. 601, 117 P. 767.
The demurrers in the first and third causes of action should have been overruled. In the second action by respondent against the association to recover the value of alfalfa seed sold and delivered in 1921, the demurrer of respondent to the answer and counterclaim of the association should have been overruled. The inconsistency of the position of respondent in these two actions is apparent when they are considered together. In the first, the association is denied relief against respondent under the marketing agreement because it did not give him notice in writing that it had determined to proceed with the business of co-operatively marketing the alfalfa seed of its members. In the second, respondent is permitted to recover the reasonable value of seed, which, by his demurrer to the answer and counterclaim, he admits was delivered to the association under the agreement pleaded by the association.