Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶22, 22 P.3d 695; Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, ¶6, 602 P.2d 203. Barringer v. Baptist Healthcare of Oklahoma, see note 3, supra; Archer v. Wedderien, 1968 OK 186, ¶14, 446 P.2d 43; State ex rel. Gaines v. Beaver, 1945 OK 318, ¶21, 166 P.2d 776. Barringer v. Baptist Healthcare of Oklahoma, see note 3, supra; Crowell v. Thoreau Center, Partnership, 1981 OK 84, ¶2, 631 P.2d 751.
Once again, we turn to Oklahoma law and find that "[w]aiver is the intentional relinquishment of a known right or conduct which warrants an inference of such intent . . ." Crowell v. Thoreau Center, Partnership, 631 P.2d 751, 752 (Okla. 1981) (citation omitted); see also Archer v. Wedderien, 446 P.2d 43, 45 (Okla. 1968). The court in Crowell also stated that waiver becomes a question of fact for the jury "where it is properly pled and there is evidence to support the plea . . ."
53 Am.Jur.2d, Mechanics' Liens, § 178, p. 697 and cases cited therein; 38 Am.Jur.2d, Gas and Oil, §§ 136-140; Annot. 59 A.L.R. 3rd, Oil and Gas — Mechanic's Materialman's Lien, pp. 278-302. These decisions are distinguishable from those which have held that the lien does not attach to the proceeds of the production where the applicable mechanic's or materialman's lien statute does not so expressly provide. Chambers v. Nation, 178 Colo. 124, 497 P.2d 5 (1972); Archer v. Wedderien, 446 P.2d 43 (Okla. 1968); Black v. Giarth, 88 Kan. 338, 128 P. 183 (1912). "The effect of the failure of a lien claimant to serve the required notice on the owner, or to serve a . . . proper notice, depends upon the terms of the statute creating the requirement . . .. Under the statutes in some states, a claimant required to give notice has no . . . enforceable lien . . .."
Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, 22 P.3d 695, 701 (Okla. 2001) (citing Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, 602 P.2d 203, 206–07 ). "The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted." Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, 22 P.3d at 701 (citing State ex rel. Gaines v. Beaver, 1945 OK 318, 196 Okla. 560, 166 P.2d 776 ; Archer v. Wedderien, 1968 OK 186, 446 P.2d 43 ). "Waiver can be accomplished either expressly or implicitly."
"The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted." Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, 22 P.3d at 701 (citing State ex rel. Gaines v. Beaver, 1945 OK 318, 166 P.2d 776; Archer v. Wedderien, 1968 OK 186, 446 P.2d 43). "Waiver can be accomplished either expressly or implicitly."
The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted. State ex rel. Gaines v. Beaver, 1945 OK 318, 166 P.2d 776; Archer v. Wedderien, 1968 OK 186, 446 P.2d 43. As a preliminary matter the physician argues the Court of Civil Appeals, by its silence, impliedly affirmed the trial court's ruling that the hospital waived its right to seek contribution. It is true the trial court ruled that the hospital's contribution claim was barred not only by the doctrine of estoppel but also by the doctrine of waiver. It is also true that the Court of Civil Appeals did not address the waiver doctrine in its opinion.
The proviso in the divorce decree evidences an unequivocal intent upon the part of the husband to waive his rights under § 1289(b) to terminate the alimony payments upon wife's remarriage. This Court has on more than one occasion said that a waiver occurs where there is a voluntary and intentional relinquishment of a known right. Archer v. Wedderien, Okla., 446 P.2d 43 (1968); Kirtley v. Kirtley, Okla., 301 P.2d 671 (1956). Furthermore, a right may be waived whether conferred by law or contract.
The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted. Barringer, 2001 OK 29, ¶ 22, 22 P.3d at 701 (citing Archer v. Wedderien, 1968 OK 186, 446 P.2d 43; State ex rel. Gaines v. Beaver, 1945 OK 318, 166 P.2d 776). The settlement agreement contemplates the mortgagee bringing a foreclosure action in the future: 1.01.2 Release and Covenant Not to Sue. Mortgagee hereby remises, releases and forever discharges Mortgagor and Guarantors . . . of and from any and all claims, causes of action, suits, controversies, torts and demands whatsoever involving in personam liability Mortgagee heretofore had or now has by reason of the Note, the Security Documents, and the Guarantees or otherwise arising in connection with the Project . . . or the loan transaction evidenced by the Security Documents. Mortgagee agrees that upon any subsequent determination that it is necessary, advisable or appropriate to institute a foreclosure action in order to foreclose the interest of any third party, Mortgagee shall not seek an in personam judgment or deficiency judgment against Mortgagor or Guarantors. It is expressly understood and agreed between the parties her
The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted. Barringer, 2001 OK 29, ¶ 22, 22 P.3d at 701 (citing Archer v. Wedderien, 1968 OK 186, 446 P.2d 43;State ex rel. Gaines v. Beaver, 1945 OK 318, 196 Okla. 560, 166 P.2d 776). The settlement agreement contemplates the mortgagee bringing a foreclosure action in the future: 1.01.2 Release and Covenant Not to Sue. Mortgagee hereby remises, releases and forever discharges Mortgagor and Guarantors ... of and from any and all claims, causes of action, suits, controversies, torts and demands whatsoever involving in personam liability Mortgagee heretofore had or now has by reason of the Note, the Security Documents, and the Guarantees or otherwise arising in connection with the Project ... or the loan transaction evidenced by the Security Documents. Mortgagee agrees that upon any subsequent determination that it is necessary, advisable or appropriate to institute a foreclosure action in order to foreclose the interest of any third party, Mortgagee shall not seek an in personam judgment or deficiency judgment against Mortgagor or Guarantors. It is expressly understood and agreed between the
¶ 8 Waiver consists of an actual intention to relinquish a known right, either expressly or by conduct that warrants an inference of such an intent to relinquish. See Crowell v. Thoreau Center, Partnership, 1981 OK 84, ¶ 2, 631 P.2d 751, 752. A waiver "involves the notion of an intention entertained by the holder of some right to abandon or relinquish instead of insisting on the right."Archer v. Wedderien, 446 P.2d 43, 45 (Okla. 1968) (citations omitted). Moreover, "[t]he most rudimentary essential of a waiver is that the waiving party shall in some manner publish his intention to relinquish his rights, either by words or conduct . . . . An individual cannot waive his rights by words spoken to himself, which no third person hears, or by conduct which is never seen."