By this opinion we reverse the summary judgment granted to the sellers of real estate. We conclude that a material issue of fact existed as to whether the seller expressly waived strict compliance with the thirty-day requirement to cure default. The case is remanded for further proceedings.
The Rouths, buyers, entered into an escrow contract to purchase real estate from the Ulerys, sellers. The escrowholder was Idaho First National Bank, Orofino Branch. The contract required monthly payments and also stated that “time is of the essence.” The contract also required the sellers to send a notice of default for past due payments to the buyers, who would then have a thirty-day period in which to cure the default. A prerequisite to curing the default was the payment of a $50 fee within the same thirty-day period to cover the cost of preparation and service of the default notice. Upon the buyers’ failure to cure a default, the contract provided the sellers with alternative remedies of accelerating the debt or declaring forfeiture and re-entering the property.
The escrowholder’s ledger shows that a previous notice of default was not cured until thirty-three days after the notice of default issued by the sellers. No objection was made to the late cure. Many of the payments, both before and after the previous default and cure, were accepted late. However, on February 24, 1982, sellers sent a second notice of default which clearly stated their intention to rely on strict performance of contract and exercise their default remedies under the contract unless two outstanding payments and the $50 default fee were remitted within the thirty days.
After receiving the default notice, buyers made the past due payments, without the $50 default fee, to the escrowholder on March 25, 1982, which was within the thirty-day period. The next day, which was the twenty-ninth day of the default period, a bank escrow officer contacted Mr. Routh by telephone and informed him that the $50 default fee must also be paid to cure the default. Mr. Routh told the escrow officer that he was going to sell his cattle the next day, Saturday, and asked if the $50 payment could be made on Monday, March 29th. The escrow officer replied that the Ulerys would have to consent and asked if Mr. Routh would prefer that she contact the Ulerys. Mr. Routh replied, “Yes, that would be best.” Mr. Routh’s affidavit states that later in the day the bank officer called back “and said that Mrs. Ulery had told her it would be okay so long as the payment were made on Monday.” The affidavit of Mrs. Ulery states that she told the bank officer that the $50 payment would not be acceptable on Monday. The affidavit of the bank officer also states that Mrs. Ulery said the Monday payment was not acceptable, and further that the refusal was told to Mr. Routh by telephone. The $50 default fee was in fact tendered and paid to the escrowholder on Monday, March 29,1982, more than thirty days after notice of default. The Ulerys rejected the cure as untimely and subsequently sent notice and demand for the entire balance of *799the contract to be paid pursuant to the acceleration clause in the contract.
Sellers filed a complaint against buyers demanding judgment for the entire unpaid balance remaining on the contract and also demanding the sale of the property with the proceeds to be applied against the unpaid balance. The buyers’ answer defended on the grounds that the thirty-day default period had been waived and also that the remedy claimed by the Ulerys was an unjust and unconscionable penalty to the Rouths. The trial court granted summary judgment to the sellers, ruling that even if it is assumed that the bank officer told Mr. Routh that the Monday payment was acceptable the escrow officer in this case was the agent of Mr. Routh for the purpose of soliciting information from Mrs. Ulery, and that the Ulerys could not be held responsible for a misstatement of the escrow agent. The Rouths have appealed.
It is “fundamental that a party may waive a provision in a contract made exclusive for [the party’s] benefit.” Schmidt v. Village of Kimberly, 74 Idaho 48, 59-60, 256 P.2d 515, 521 (1953). Mr. Routh’s affidavit, stating that he was told that Mrs. Ulery would accept the default fee on Monday, supports the inference that sellers expressly waived the thirty-day time limit. This fact was placed at issue by the affidavits of the bank employee, Mrs. Ulery and Mr. Routh, as the trial court correctly acknowledged.
However, the trial court concluded as a matter of law that the escrow officer, in inquiring of Mrs. Ulery whether or not the payment of the $50 late fee on the next Monday was acceptable, and relaying that information to Mr. Routh, was acting as agent for the buyers Rouths, not the seller Mrs. Ulery, and that therefore Ulerys would not be bound by the statement. Viewing the record most favorably to the Rouths who were the non-moving parties, as we must in reviewing this summary judgment motion, we are of the opinion that a factual question existed on the issue of whether the escrow officer was acting as agent for the Rouths or for the Ulerys. The Ulerys had instigated the default proceeding pursuant to the escrow agreement. The escrowholder was delivering the notice of default to the Rouths on behalf of the Ulerys. The escrowholder was directed to accept the late payments for the Ulerys pursuant to the notice of default. When the Rouths responded to the notice of default by making the monthly payments which were in arrears, but failed to make the $50 notice of default payment, the escrow officer contacted the Rouths and advised them that the payment which they had made did not satisfy the entire amount owing pursuant to the notice of default which the Ulerys had delivered to the escrow agent for service upon the Rouths. One reasonable conclusion which could be drawn from these circumstances is that the escrow officer was attempting to collect the default fee for the benefit of the sellers and accordingly was acting as the agent for the sellers when she initiated the disputed conversation on Saturday, March 27th. Accordingly, the trial court erred in ruling as a matter of law that the escrow officer was acting as the agent for the buyers.
Summary judgment is proper only where “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” I.R.C.P. 56(c). The record should be construed in a light most favorable to the non-moving party. E.g., Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982); Moss v. Mid-American Fire & Marine Ins. Co., 103 Idaho 298, 647 P.2d 754 (1982). In the present case a material issue of fact existed as to whether the escrow officer was acting as agent for the sellers or agent for the buyers, and, if acting as agent for the sellers, whether the escrow officer advised the buyer Mr. Routh that it would be acceptable to make the payment on Monday, as Mr. Routh’s affidavit states, rather than not acceptable as the bank officer’s affidavit states.
Additionally, the buyers contend that the failure to pay the $50 expense fee was not a material breach which would entitle the *800sellers to accelerate the entire unpaid purchase price balance of the contract. Since the summary judgment of the district court is reversed and the cause remanded for a trial, that, and any other defenses which the buyers may claim, can be raised at the trial and passed upon by the district court at that time.
The judgment of the trial court is reversed and the cause remanded to the trial court for further proceedings.
DONALDSON, CJ„ BISTLINE, J., and WALTERS, J. pro tern., concur. SHEPARD, J., concurs in result.