delivered the opinion of the Court.

On the 6th of August, 1910, the parties to this case entered into a written contract by which the appellee, the plaintiff below, agreed to sell to the appellants 2,000 cases Eo. 2 full standard tomatoes and 1,500 cases Eo. 3 full standard tomatoes. The buyer was to furnish the cases and cans for the fruit and be entitled to a specified allowance for so doing, deliveries were to be made when packed during the season of 1910, not later than October 1st. The vendor commenced deliveries upon the same day the contract was signed, and, according to the plaintiff’s evidence, continued making them up to the 30th day of September, by which time the full amount of the Eo. 2 variety had been delivered and 135 of the 1,500 cases of Eo. 3.

*281 The present suit is brought, not on the written contract, but in assumpsit to recover upon the basis of a quantum, meruit for a balance due for goods actually delivered, but not paid for by the buyer. There should be but little difficulty in determining the principles controlling the case. The general rule is unquestionably that where there is a special contract, the recovery, if any, must be had by an action upon that, rather than by a suit based on a quantum meruit, and where there has been a breach in the contract, the party guilty of the breach can not abandon his contract and elect to stand upon the common counts. Dougherty v. Gring, 89 Md. 544; Townes v. Cheney, 114 Md. 362.

But the party guilty of the breach may be excused from that default where his act or failure, constituting the breach, is occasioned by some act of the other party, Meyer v. Frental, 113 Md. 45, or the breach of the contract may be waived by the party to be affected by it.

The defence to the present suit is the non-delivery of 765 cans of 27o. 3 tomatoes, as constituting a breach of the agreement. The non-delivery is admitted by the plaintiff, who insists, nevertheless, that this was due to the refusal of the defendants to furnish cans in accordance with the agreement, and the failure of the defendants to make the payments as stipulated. The fact that the plaintiff did make some deliveries after the time when the defendants had refused or failed to deliver cans is urged by the defendants as showing a waiver on the part of the plaintiff of any right he may have had to abandon the further performance of the contract. It is upon this theory that the first prayer of the defendants was presented, which sought to take the case from the jury. This prayer was not presented until all the evidence upon both sides was in, and that evidence abounded in contradictions upon matters of fact, from which a waiver might or might not be found to have resulted. The question of waiver may sometimes be one of law for the Court, and then it usually arises as a question of estoppel; Spring Gar *282 dens Co. v. Evans, 9 Md. 1; Farmers' Ins. Co. v. Baker, 94 Md. 561, or it may be a question for tbe jury under proper instruction from tbe Oourt, where it has to be deduced from tbe actions of the parties, 29 Am. & Eng. Ency. 1108. In this case tbe defendants’ first prayer ashed tbe Oourt to find an estoppel from the. conduct of tbe plaintiff. Tbis was manifestly error in view of tbe conflicting testimony, and tbe prayer was properly refused.

Tbe plaintiff in -this case offered no prayers, and tbe defendants two. Tbe second prayer of the defendants was as follows, and granted by the Oourt with a modification, tbat modification being tbe addition of tbe words in italics:

“Defendants’ Second Prayer. — At tbe request of tbe defendants, tbe jury are instructed tbat, by tbe uncontradicted evidence, three facts appear:

1. Tbat tbe plaintiff was required by bis contract to deliver to defendants, on or before October 1st, 1910, 2,000 cases Ro. 2 and 1,500 cases Ro. 3 full standard tomatoes;

2. Tbat plaintiff failed to deliver said quantity to defendants within tbe timé prescribed, although requested to do so by defendants;

3. Tbat plaintiff continued to deliver large quantities of tomatoes to defendants, after defendants’ alleged refusal to supply cans to plaintiff, and accordingly, tbe defendants are entitled to recover against tbe plaintiff, by way of recoupment, as follows:

1. Tbe difference between tbe market value of tbe undelivered tomatoes at tbe time plaintiff refused to make said delivery, and tbe price of said tomatoes as specified in said contract, if any, unless the jury shall find that the plaintiff demanded from the defendants the necessary cans and that the defendants failed or refused to furnish said cans.

2. Tbat brokerage commission and cash discount specified in said contract, upon tbe gross value of tbe canned tomatoes delivered, as charged' against defendants by plaintiff.

3. And if tbe jury shall find tbat 1,225 cases of tbe tomatoes delivered by plaintiff to defendants were not ‘full standards,’ but were ‘seconds,’ and tbat tbe market price of ‘seconds’ *283 is and was lower than the market price of ‘full standards/ then the defendants are entitled to recover against the plaintiff an amount equal to the difference between the contract price of ‘full standards’ and the market value of ‘seconds/ upon said number of cases. i

And if the jury shall find that the aggregate of said amounts is equal to or greater than the sum of $396.27, which is the amount of plaintiff’s claim disputed by the defendants, then their verdict must be in favor of the defendants. (Granted as modified.')”

This modification was excepted to by the defendants. It has been strenuously urged upon the Court that the modification made by the trial Court was inconsistent with the language of the preceding paragraph, numbered 3. We do not so regard it. To have granted the prayer in its original form would have been to send the case to the jury with an instruction which entirely ignored a large portion of the plaintiff’s evidence, and such an instruction is serious error, Jackson v. Jackson, 80 Md. 192; particularly so where such instruction is the only one given the jury. In addition to this, but for the modification the case would have been presented to the jury in a form dealing with the question of waiver as purely one of law, while the effect of the language added by the judge before whom the case was tried, was to submit this question as one of fact to be passed on by the jury, and as already indicated the facts testified to made this question one peculiarly for the jury.

Four exceptions were reserved in questions of evidence, but none of them have been seriously pressd in this Court, and it is sufficient to say, that whether the action of the learned judge who heard the case was correct in each instance or not, it is not perceived how the defendants were injured as the result of any of the rulings.

Judgment affirmed, with costs.