ON APPLICATION FOR REHEARING.
FRICK, J.Counsel for appellant has filed a petition for rehearing in which he assails practically every proposition decided against his contentions. He somewhat severely criticises us for not stating our reasons more at large upon some of the propositions where the ruling is against him. As a sample of his criticism we refer to the following: Counsel, in his original brief, urged that the defendant had waived his right to recover damages for the reason, as counsel contends, that defendant had continued to recognize the contracts of sale as being in force after the alleged breaches had occurred. To sustain that contention, counsel, among other cases, cited Phillips, etc., Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Krause v. Board of Trustees (Ind. App.), 66 N. E. 1010, and Claudius v. West, etc., Co., 109 Mo. App. 346, 84 S. W. 354. Counsel says we cited no cases to the contrary, and that we, in four lines, dismissed his contention, etc. So we did, and the rea-*210soil therefor was that, after reading the foregoing eases and some' other cited in support of the proposition, we became convinced that the eases cited had no application to the facts of the ease at bar. We are still of that opinion. The case cited from 91 U. S., supra, involved a forfeiture arising as follows: The defendants in error had agreed to construct and complete a certain number of miles of railroad within a specified time. They failed to complete the work within the time agreed upon, but the plaintiff in error permitted the defendants in error to continue the work after the time within which it should have been completed had elapsed. The plaintiff in error thereafter failed to pay the defendants in error for all of the work, and they sued the former to recover for the unpaid portion. The plaintiff in error in that action sought to enforce the forfeiture which was provided for in case the defendants in error should fail to complete the railroad within the specified time, and the Supreme Court of the United States, upon very familiar principles, refused to enforce the forfeiture. The principle that controlled the decision in the case of Claudius v. West, etc., Co., supra, is so clearly reflected in the headnote that we shall do no more than to copy the same. It reads:
“Where the time oí payment undei- a contract is extended after date for pajunent, the right of enforcing a forfeiture for default in payment is waived.”
The decisions in the other cases cited rest upon practically the same principle.
The substance of the correspondence between the parties to this action is set forth in the former opinion, to which reference is made in the opinion on this appeal. The peculiar relationship of the parties is there fully referred to. It was not deemed necessary to enlarge upon or even to specifically refer again to that relationship in the last opinion.
8 Counsel, however, somewhat impatiently contends that we treated the question of whether there was a waiver or not as one of evidence or of fact when it is not such. The difference between us and counsel, however, is one merely of stating the proposition. No doubt “waiver” is a legal conclusion based upon the evidence or the facts, just as *211one chooses to state it. What the conclusion should be in a given ease depends entirely upon the evidence or the facts found. There is, therefore, no reason why we should change the statement in the opinion upon that subject. But what is a “waiver”? It is defined as being the
“voluntary and intentional relinquishment of a known legal right and implies an election to dispense with something of value or fore-go some advantage which the party waiving it might, at his option, have demanded or insisted upon.” 4 Words and Phrases (2d Ser.) 1226, 1227.
A waiver may or may not rest in contract. If it does, it, like all other contracts, requires some consideration. It may, however, also partake of the nature of an estoppel in pais. 4 Words and Phrases, supra. A mere cursory reading of the correspondence between the parties to this action which passed between them, in connection with other evidence in the case, leaves no room for doubt that the defendant did not intend to, nor did he, waive any legal rights which had accrued to him by reason of the breaches of the contracts set forth in his counterclaims. The cases cited by counsel, therefore, have no influence upon the questions involved here. Ordinarily, Avhere the right to insist upon a forfeiture exists, and the party who has the right to declare a forfeiture perr mits the other party to continue to act or to do something after the time to declare the forfeiture has elapsed, and the other party continues to act in the honest belief that the forfeiture will not be insisted upon, then a waiver of such forfeiture may be implied, and the law looks upon such waivers with favor. Where, however, a legal right or cause of action has accrued for a breach of contract or for some other reason, the law' requires that the waiver be established in accordance with the doctrine we have just quoted from Words and Phrases.
Counsel also insists that we erred in not reversing the judgment on the counterclaim relating to what, in the opinion, is called the J. C. Fuller safe. He still contends that there is no evidence justifying the court’s finding as to that counterclaim, and further insists that the Fuller safe was delivered. There is evidence on'the part of the plaintiff that *212the safe was shipped pursuant to the order, but there is also undisputed evidence on the part of the defendant that supports the court’s findings. The defendant upon that question testified:
“Why, it was shipped to Ely, but it was about eight months after the order was sent,to the company [the plaintiff] , and in the meantime Fuller had left that country and I could never deliver the safe.”
This is a law case, and we cannot pass upon the weight or effect of the evidence. While the writer, upon the whole evidence, would be inclined to find the ultimate fact respecting that safe in favor of plaintiff’s claim, yet there is some substantial evidence in support of the court’s findings, and hence we cannot interfere with the judgment upon that counterclaim. The other question of whether the plaintiff had accepted the order for the J. C. Fuller safe we need not discuss further. We passed upon that in the original opinion, and adhere to what is there said in that respect.
It is next insisted that we erred in not reversing the judgment upon the measure of damages. It is urged that inasmuch as it is made to appear that the defendant sold the safes in question at an advance of more than 100 per cent., that, therefore, we have not followed the rule laid down in the Wisconsin ease from which we quoted in the opinion. Here again counsel entirely overlooks the evidence. While it is true that the defendant sold the safes at the price stated in the former opinion, yet the evidence conclusively shows that his expenses of keeping men in the field taking orders for safes were very great, and that he frequently impressed that fact upon the plaintiff in the correspondence that passed between them. What his net profits were is not shown, and hence the doctrine laid down by the Wisconsin court could be given no application. We did not deem it necessary to set forth the evidence upon that subject or refer to it, since counsel was thoroughly familiar with it. In view that we are satisfied with the rule laid down in the opinion upon the question of the measure of damages we shall not further discuss that subject here. *213which it is based. That, in our judgment, is what
9 *212It is also insisted that we abused our discretion in disallow*213ing plaintiff costs on appeal. The propensity to criticise what one does not like is ever active, and counsel at times criticise a ruling without pausing to consider the reason upon counsel has done in regard to the order for costs. The allowance for costs in this court is always a matter of sound discretion, except where the judgment of the lower court is unconditionally affirmed. In all other cases costs are to be ■awarded or withheld as, in our judgment, justice may require. While it is true, as counsel states, that plaintiff was required to come to this court to obtain a reversal or modification of the judgment appealed from, yet it is. equally true that fhe plaintiff sued the defendant when, finder our statute (Comp. Laws 1907, Section 2971), it had no right to any kind of a judgment against him. The defendant was therefore required to defend himself against the plaintiff’s action, which was prosecuted without legal cause. The plaintiff, therefore, was not entitled to any judgment against the defendant. Under such circumstances we do not see why, as a matter of justice, the defendant should be required to pay costs. True, on the former appeal defendant was awarded costs. That was so, however, because the plaintiff had obtained an erroneous ruling to the effect that the defendant had no cause of action upon his counterclaims. Moreover, on this appeal the plaintiff did not print a new abstract of the record, but merely filed the one used on the former appeal, with a few unimportant additions thereto in what is called an additional abstract. Why the defendant should be required to pay for the abstract used on the former appeal is not shown. Although the plaintiff had to come to this court to have the judgment against it modified, yet it was required to do that because it had instituted the action without any legal cause therefor. Under such circumstances we think the ■order respecting costs is sound in reason, and is also just to both parties, and the same should stand except as hereinafter indicated.
Counsel for plaintiff, however, further contends that we erred in not reversing the findings and judgment of the lower ■court respecting defendant’s third counterclaim, in which *214be was awarded tbe sum of $240.24, including interest. Counsel strenuously insists that there is no evidence that the order for the No. 80 safe mentioned in that counterclaim was accepted by the plaintiff, and hence the lower court, as well as this court, has erred in allowing the amount, or any amount, claimed by the defendant in said counterclaim. In view of counsel’s insistence, we have made a very careful re-examination of the evidence a-dduced on the first trial, all of which was made a part of the record on the second trial, and have also re-examined the evidence adduced on the second trial, and after doing so have become convinced that the evidence pointed out by defendant’s counsel and relied on by us as constituting an acceptance of the order for the No. 80 safe mentioned in the third counterclaim in fact had reference to another No. 80 safe that was ordered by the defendant for another and a different person. In view of the foregoing' there is no evidence whatever which justifies a finding that the plaintiff had accepted the order for the No. 80 safe mentioned in the third counterclaim. The finding and judgment respecting that counterclaim, therefore, cannot be maintained, for the simple reason that there is no evidence of any contract between the parties respecting the No. 80 safe mentioned in said counterclaim. The amount awarded the defendant by the trial court on that counterclaim in the sum of $240.24 as aforesaid must, therefore, be 'deducted from the original judgment. The judgment as modified by the original opinion in this case must therefore be further modified by deducting from the amount there allowed said sum of $240.24. It is therefore ordered that the judgment as modified by the original opinion be, and the same hereby is, further modified by deducting from the amount there allowed the further sum of $240.24, and the judgment, when so modified, will in all other respects -stand affirmed. Said affirmance is upon the condition, however that the defendant, within five days after the filing of this opinion and notice thereof to his counsel, shall file his consent to the foregoing modification of the judgment. In case he shall refuse or neglect to file said consent within the time stated, then the judgment as to said third counterclaim shall be, and the same is hereby, reversed, and *215in view that the defendant had already accepted the judgment as modified by the original opinion, the ease will be remanded to the District Court of Salt Lake County for a retrial only upon said third counterclaim and upon no other matter or thing, and said judgment will stand affirmed as to all other counterclaims, except as modified by the original opinion. In case .the defendant shall fail or refuse to file an acceptance of the further modification of the judgment as herein provided for, and shall insist upon a retrial of the case upon said third counterclaim, he shall pay the costs for printing the additional abstract, and also for printing plaintiff’s brief. In case he accepts the modification of the judgment, however, he shall not be required to pay said costs.
STRAUP, C. J., and McCARTT, J., concur.