OPINION
HERNANDEZ, Judge.
Plaintiff sued defendant for breach of contract, which contract was for the construction of a fence around part of plaintiff’s drive-in movie theatre. Plaintiff alleged that defendant had designed and erected the fence in a negligent and unworkmanlike manner. Defendant counterclaimed for the unpaid balance due him. The jury rendered a verdict in favor of defendant and this appeal ensued.
The pertinent facts are these: The county officials required that plaintiff increase the heighth of the existing fence around its drive-in theatre so as to completely obstruct the view of the screen from the adjoining highway. Plaintiff contacted defendant and together they determined that the existing fence had to be raised about 12 feet, making a total height of approximately 24 feet. Various types of fencing were discussed between defendant and Charles J. Moss, the co-owner and operator of the theatre. The testimony as to these various discussions was conflicting, Mr. Moss saying in effect that Mr. Turner made the final decision and defendant saying that Mr. Moss made the final decision as to the type of fencing based on cost. The final decision was to construct a chain-link fence with diagonal metal slats in “every other diamond.” Later on it was determined that slats had to be inserted in every diamond to obstruct the view. The fence was completed and destroyed the following day by a high wind.
Plaintiff alleges two points of error, the first being that the trial court erred in denying its motion for a judgment notwithstanding the verdict on the issue of defendant’s negligence as a matter of law. Plaintiff argues that defendant was guilty of negligence as a matter of law because the fence as constructed did not comply with the standards established by the Uniform Building Code of the State of New Mexico.
At this point it is necessary to note that the defendant in his answer to plaintiff’s complaint affirmatively pled both estoppel and waiver and the jury was so instructed. The jury was also instructed that if the defendant had conducted himself in violation of the Uniform Building Code that such conduct constituted negligence as a matter of law.
The principal question then becomes, can a person waive or be estopped from asserting a statutory right or advantage? The answer is yes.
Outboard Marine Corp. v. Superior Ct., Cty. of Sacramento, 52 Cal.App.3d 30, 124 Cal.Rptr. 852 (1975), states:
The doctrine of waiver is generally applicable to all the rights and privileges to which a person is legally entitled, including those conferred by statute unless otherwise prohibited by specific statutory provisions.
The doctrine of waiver is applicable to contract rights or benefits.
Oleg Cassini, Inc. v. Coture Coordinates, Inc., 297 F.Supp. 821, (D.C.1969), states:
A party may, by words or conduct, waive a provision in a contract or eliminate a condition in a contract which was inserted for his benefit [citations omitted.] and no consideration is necessary for such a waiver to be effective.
Reinhart v. Rauscher Pierce Securities Corp., 83 N.M. 194, 490 P.2d 240 (Ct.App. 1971), states:
Estoppel is the preclusion, by acts or conduct, from asserting a right which might otherwise have existed, to the detriment and prejudice of another, who in reliance on such acts and conduct, has acted thereon.
Bastanchury v. Times-Mirror Co., 68 Cal. App.2d 217, 156 P.2d 488 (1945), states:
Whether the established facts in any given case constitutes, in its most technical sense, an “equitable estoppel” or a “waiver” is not always easily distinguishable. . . Strictly speaking, the latter is used to designate the act or the consequence of the act of one person only, while the former is applicable where one’s conduct has induced another to take such a position that he will be injured if the first be permitted to repudiate his acts. [Citation omitted.]
A waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right and may result from an express agreement or be inferred from circumstances indicating an intention to waive. [Citations omitted.]
The rule is clearly stated that one may waive a right given by contract or advantage of law intended for his benefit.
This brings us to the question posed by plaintiff’s first point of error, i. e., whether the trial court erred in denying its motion for judgment notwithstanding the verdict.
A judgment notwithstanding verdict is proper only in those cases where it can be said that there is neither evidence nor inference from which the jury could have arrived at its verdict. . . . It is for the jury under proper instructions to determine the weight and significance of each fact in evidence. Chavira v. Carnahan, 77 N.M. 467, 423 P.2d 988 (Ct.App.1967).
The question of the establishment of an affirmative defense, which defense is based on questions of fact is one for determination by the jury and not by the court, when there is sufficient evidence to substantiate the finding of the jury. See Gordon v. Eureka Casualty Co., 187 Pa. Super. 636, 146 A.2d 379 (1958).
Some of the most pertinent and most damaging evidence against plaintiff’s position came from the testimony of Mr. Moss, which reads in part:
I suggested a telephone pole, tin-type fence, but I thought we should go to a chain-link fence. With vinyl diagonal slats in it for the reason that instead of having the full metal fence up, the wind, the whole pressure of the wind would be against it. With this chain-link fence, some of the wind could go-some of the wind could go through. Mr. Turner was the one who told me, I did not know this, but a prior fence had blown down, which was of a concrete construction. And that an old type board screen had blown down. So he knew of the wind factor there. And I knew of the wind factor there. I flew to Taos to look at a drive-in out there that was made out of telephone poles, two by fours and corrugated metal. They said it had been up about five years and had been about the same height that we were talking about. .
It appeared to me that a chain-link fence would still be better because it was not solid. Part of the wind could blow through it.
Q. Do you recall telling Mr. Evatt that the cost of the telephone pole and tin fence was prohibitive and you had to go this other route?
A. That is was prohibitive?
Q. That is was too expensive.
A. Yes, I probably did with what I was getting, yes. I really don’t recall talking to Mr.
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OPINION
HERNANDEZ, Judge.
Plaintiff sued defendant for breach of contract, which contract was for the construction of a fence around part of plaintiff’s drive-in movie theatre. Plaintiff alleged that defendant had designed and erected the fence in a negligent and unworkmanlike manner. Defendant counterclaimed for the unpaid balance due him. The jury rendered a verdict in favor of defendant and this appeal ensued.
The pertinent facts are these: The county officials required that plaintiff increase the heighth of the existing fence around its drive-in theatre so as to completely obstruct the view of the screen from the adjoining highway. Plaintiff contacted defendant and together they determined that the existing fence had to be raised about 12 feet, making a total height of approximately 24 feet. Various types of fencing were discussed between defendant and Charles J. Moss, the co-owner and operator of the theatre. The testimony as to these various discussions was conflicting, Mr. Moss saying in effect that Mr. Turner made the final decision and defendant saying that Mr. Moss made the final decision as to the type of fencing based on cost. The final decision was to construct a chain-link fence with diagonal metal slats in “every other diamond.” Later on it was determined that slats had to be inserted in every diamond to obstruct the view. The fence was completed and destroyed the following day by a high wind.
Plaintiff alleges two points of error, the first being that the trial court erred in denying its motion for a judgment notwithstanding the verdict on the issue of defendant’s negligence as a matter of law. Plaintiff argues that defendant was guilty of negligence as a matter of law because the fence as constructed did not comply with the standards established by the Uniform Building Code of the State of New Mexico.
At this point it is necessary to note that the defendant in his answer to plaintiff’s complaint affirmatively pled both estoppel and waiver and the jury was so instructed. The jury was also instructed that if the defendant had conducted himself in violation of the Uniform Building Code that such conduct constituted negligence as a matter of law.
The principal question then becomes, can a person waive or be estopped from asserting a statutory right or advantage? The answer is yes.
Outboard Marine Corp. v. Superior Ct., Cty. of Sacramento, 52 Cal.App.3d 30, 124 Cal.Rptr. 852 (1975), states:
The doctrine of waiver is generally applicable to all the rights and privileges to which a person is legally entitled, including those conferred by statute unless otherwise prohibited by specific statutory provisions.
The doctrine of waiver is applicable to contract rights or benefits.
Oleg Cassini, Inc. v. Coture Coordinates, Inc., 297 F.Supp. 821, (D.C.1969), states:
A party may, by words or conduct, waive a provision in a contract or eliminate a condition in a contract which was inserted for his benefit [citations omitted.] and no consideration is necessary for such a waiver to be effective.
Reinhart v. Rauscher Pierce Securities Corp., 83 N.M. 194, 490 P.2d 240 (Ct.App. 1971), states:
Estoppel is the preclusion, by acts or conduct, from asserting a right which might otherwise have existed, to the detriment and prejudice of another, who in reliance on such acts and conduct, has acted thereon.
Bastanchury v. Times-Mirror Co., 68 Cal. App.2d 217, 156 P.2d 488 (1945), states:
Whether the established facts in any given case constitutes, in its most technical sense, an “equitable estoppel” or a “waiver” is not always easily distinguishable. . . Strictly speaking, the latter is used to designate the act or the consequence of the act of one person only, while the former is applicable where one’s conduct has induced another to take such a position that he will be injured if the first be permitted to repudiate his acts. [Citation omitted.]
A waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right and may result from an express agreement or be inferred from circumstances indicating an intention to waive. [Citations omitted.]
The rule is clearly stated that one may waive a right given by contract or advantage of law intended for his benefit.
This brings us to the question posed by plaintiff’s first point of error, i. e., whether the trial court erred in denying its motion for judgment notwithstanding the verdict.
A judgment notwithstanding verdict is proper only in those cases where it can be said that there is neither evidence nor inference from which the jury could have arrived at its verdict. . . . It is for the jury under proper instructions to determine the weight and significance of each fact in evidence. Chavira v. Carnahan, 77 N.M. 467, 423 P.2d 988 (Ct.App.1967).
The question of the establishment of an affirmative defense, which defense is based on questions of fact is one for determination by the jury and not by the court, when there is sufficient evidence to substantiate the finding of the jury. See Gordon v. Eureka Casualty Co., 187 Pa. Super. 636, 146 A.2d 379 (1958).
Some of the most pertinent and most damaging evidence against plaintiff’s position came from the testimony of Mr. Moss, which reads in part:
I suggested a telephone pole, tin-type fence, but I thought we should go to a chain-link fence. With vinyl diagonal slats in it for the reason that instead of having the full metal fence up, the wind, the whole pressure of the wind would be against it. With this chain-link fence, some of the wind could go-some of the wind could go through. Mr. Turner was the one who told me, I did not know this, but a prior fence had blown down, which was of a concrete construction. And that an old type board screen had blown down. So he knew of the wind factor there. And I knew of the wind factor there. I flew to Taos to look at a drive-in out there that was made out of telephone poles, two by fours and corrugated metal. They said it had been up about five years and had been about the same height that we were talking about. .
It appeared to me that a chain-link fence would still be better because it was not solid. Part of the wind could blow through it.
Q. Do you recall telling Mr. Evatt that the cost of the telephone pole and tin fence was prohibitive and you had to go this other route?
A. That is was prohibitive?
Q. That is was too expensive.
A. Yes, I probably did with what I was getting, yes. I really don’t recall talking to Mr. Evatt, but I’ve talked to him quite a bit about the business because he has worked for me before.
Q. When you discussed adding the additional vertical slats with Jerry, did you discuss the problem of increased wind resistance?
A. That was discussed at the very beginning of the contract.
Q. Did he advise you that increasing those additional slats would substantially increase the wind resistance? A. I knew that. As far as he stating to me in those exact words, no.
Mr. Eddie Evatt, a former employee of plaintiff’s, testified in part as follows:
Q. What discussions did you have with Mr. Moss concerning fences?
A. Basically he wanted by to get him a price of what it would cost to fence the highway side as far as material. went. We made, oh, probably three to five phone calls on getting the price on posts, and the wire-not the wire, but the tin. And, he at that time was going to fly somewhere to look at a fence of this nature. And when he got back I had the price for him and he said it was too expensive.
Q. What was the approximate price?
A. There again, to the best of my knowledge, it was like the tin and poles, and everything, not counting putting it up, this is just material, was going to run probably $12-$15,-000.
Q. Did you ever discuss the types of fences, as far as quality was concerned?
A. As far as-well, like I say, he went up and looked at the pole fence. He told me that the pole fence would stand up,- he thought, far better. But he just couldn’t afford the price.
Q. Did you ever discuss this particular fence with Jerry Turner?
A. At that time Jerry thought that he wasn’t going to be able to guarantee the fence. He was just going to put up the fence.
Q. Did you have any conversations with Mr. Moss concerning this, as far as guarantee is concerned?
A. Mr. Moss never did in so many words tell me anything about the guarantee. He left the impression that he knew that the guarantee would not be there.
The defendant testified in part as follows:
Q. In your discussions with Mr. Moss, did you propose certain alternatives?
A. Yes, I did.
Q. What sorts of alternatives did you discuss with Mr. Moss?
A. Well, the pole fence was one which he referred to.
Q. Could you speak louder?
A. The telephone pole type fence, we discussed it. I told him about the heavy weight pipe, but the cost was just a little bit over double, of the tubing in the same structure.
Q. You say that you considered cost to be a major factor, was that based upon anything that Mr. Moss said to you?
A. Right. Talking to him over the phone and at the drive-in, off and on.
Q. Did he make any indication to you after he took this trip to Taos, as to his opinion of the telephone pole and tin fence?
A. Yes, it was too expensive, after he checked on it.
Q. Did you discuss, I believe you testified a few moments ago that you discussed all vertical poles, all new vertical poles, is that correct?
A. Yes.
Q. What did you discuss as far as the cost of all new vertical posts?
A. I tried to explain to him that the length was a factor, and it would have to be a heavier post to go that heighth. That’s just-it would be a complete new fence is what is amounted to.
Q. Did you discuss the cost of the fence?
A. Yes, it would be more expensive.
Q. What kind of posts did you discuss using?
A. Various, schedule 40 pipe. And then in inches, 2lh, 3 inch, that we never got into because of the cost. I tried to explain to him the cost factor; it was heavy pipe.
Q. Did you give him an approximation of the cost, with altogether new vertical posts?
A. Right. I told him that if we went with the diagonals and verticals that it would approximately double what this fence would cost, that I installed.
Q. This was approximately $9,800?
A. $9,850.
Q. And the price to go to all new vertical posts in this size diagonals would approximately double?
A. Yes, ma’am.
Q. Did he express an opinion whether he wished to proceed in that manner?
A. No ma’am. He didn’t like the price, when I came up with this price.
Q. Did you make Mr. Moss aware of the types of materials you were planning on using?
A. Yes, I did.
Q. How did you make him aware?
A. Well, before we began, we cut pieces of two inch and 2V2 inch tubing, small cut pieces, so he could see what I was talking about.
Q. And did he approve those lengths of tubing?
A. Yes.
This testimony constituted substantial, probative evidence from which the jury could have arrived at their verdict that the plaintiff had waived any right given it by the Uniform Building Code or that he was estopped to assert such right. The trial court, in our opinion, properly declined to grant plaintiff’s motion.
Plaintiff’s second point of error is that the trial court erred in refusing to give its requested instruction as to defendant’s breach of implied warranty of skill and workmanship. It is our opinion that this point is without merit for two reasons. First, the evidence was uncontradicted that the work performed by defendant had been done in a skillful and workmanlike manner. Granted, plaintiff’s expert witness testified that the fence did not conform to the Uniform Building Code but he was never asked if what had been done was not done in a skillful and workmanlike manner. The second reason is that the plaintiff assumed the risk and under such circumstances there is no room for the application of implied warranties against the defendant.
An implied warranty is one which the law derives by implication from the nature of the transaction or the relative situation on circumstances of the parties. Black’s Law Dictionary 1759 (4th ed. 1968). “It has been held that implied warranties, unlike express warranties are arrived at by operation of law and conclusions announced by the court upon established facts. They are based wholly on implications of law as distinguished from inferences or implication of fact. Belt Seed Co. v. Mitchelhill Seed Co., 236 Mo.App. 142, 153 S.W.2d 106.” Mullins v. Sam Scism Motors, Inc., 331 S.W.2d 185 (Ct.App.Mo.1960).
The court must first, therefore, examine the established facts of the case to determine if an implied warranty should be created by operation of law. This is what was done in Glass v. Wiesner, 172 Kan. 133, 238 P.2d 712 (1951).
The defendant Wiesner relies on the doctrine of implied warranty and cites statements of law from various cases. He leans heavily on a statement contained in City of McPherson v. Stucker, 122 Kan. 595, 256 P.2d 963, which reads:
“When the principal object of a contract is to obtain a result, there has been no compliance with the contract until the result has been obtained.
“ ‘Where the contract contains a guaranty or warranty, express or implied, that the builder’s work will be sufficient for a particular purpose, or to accomplish a certain result, unless waived by the owner, the risk of accomplishing such purpose or result is on the builder, and there is no substantial performance until the work is sufficient for such purpose or accomplishes such result.’ 9 C.J. 745.” 122 Kan. at page 600, 256 P. at page 966.
We adhere to that rule. The trouble here lies in its application to the instant facts. Clearly the memorandum agreement contains no express warranties. Moreover it nowhere attempts to imply what amount of grain the elevator and quonset addition were expected to accommodate. In view of the conflicting testimony the court had a right to believe the facilities were constructed in accordance with Wiesner’s directions and against plaintiff’s admonition that they were inadequate and that defendants agreed to assume the risk. Under such circumstances there is no room for the application of the doctrine of implied warranties against the builder. Glass v. Wiesner, supra.
The established facts in this case show that plaintiff selected the type, size and strength of materials to be used, in spite of being admonished that they might not prove sufficient to withstand the winds prevalent in that area. We see no basis for an implied warranty to arise by operation of law upon those facts.
We affirm.
IT IS SO ORDERED.
SUTIN, J., specially concurs. ANDREWS, J., dissents.