And in any case, our Supreme Court has firmly rejected such a notion: "Mere forbearance does not of itself constitute a waiver." Singer v Hoffman Cake Co, 281 Mich 371, 374; 275 NW 177 (1937). The parties agree that MMR moved in on a date "early in August."
Exhibits offered on appeal that were either not offered to the court below or that were excluded by the lower court from the settled record on appeal are not properly part of the record on appeal. Dora v Lesinski, 351 Mich. 579, 581; 88 N.W.2d 592 (1958); Singer v Hoffman Cake Co, 281 Mich. 371, 375; 275 N.W. 177 (1937). 4.
In fact, as intimated in the Gray case, the vendor must be vigilant in enforcing his rights. While Singer v. Hoffman Cake Co., 281 Mich. 371, 275 N.W. 177, holds that mere forbearance to sue for late payments is not a waiver; a notice of intent to forfeit and a notice of forfeiture had been given, and, in fact, the vendee could not pay. Pier v. Lee, 14 S.D. 600, 86 N.W. 642, on the other hand, allowed specific performance on a cross-claim presented in opposition to a suit to clear title under a contract which made time of the essence and provided for an optional forfeiture without notice. Some seven years before the suit was brought the defendant had defaulted, but the plaintiff had waited three months before declaring a forfeiture, and another month before bringing a detainer action.