In view of the testimony tending to prove that literal and formal compliance with the terms of the contract relating to plaintiff’s election as a member and manager of the “ Identity Indicator Company” had been waived by him as well as those interested in the company, the learned trial judge was warranted in submitting the question of waiver to the jury. Without referring specially to the testimony, it is sufficient to say that the facts and circumstances properly in evidence tended to prove such mutual waiver, and thus presented a question of fact for the exclusive determination of the jury. It follows that there was no error in refusing plaintiff’s points recited in the first six specifications, nor in charging the jury as set forth in the remaining specifications. Considered as a whole, in the light of the testimony, the charge was neither unfair, nor misleading. The question of mutual waiver, on which the case hinged, was properly submitted to the jury, and the presumption is that it was rightly determined in favor of defendant. We find nothing in either of the assignments of error that requires further comment.
Judgment affirmed.