Hanenkratt v. Brougham

• Decision Date: 27 May 1912
• Parties: HANENKRATT v. BROUGHAM.
• Court: Missouri Court of Appeals

147 S.W. 1129

HANENKRATT v. BROUGHAM.

Kansas City Court of Appeals. Missouri.

May 27, 1912.

1. CONTRACTS (§ 346) — ACTIONS — PERFORMANCE — WAIVER.

One cannot plead performance of a contract and rely on a waiver of performance except in an action on an insurance policy.

2. CONTRACTS (§ 295) — BUILDING CONTRACTS — PERFORMANCE — ACCEPTANCE.

Where a contractor for grading by excavating at certain places and filling at others did the work under the supervision of his employer and as directed, and the work was accepted and partly paid for, there was a sufficient performance by the contractor to authorize a recovery on the contract based on performance.

3. APPEAL AND ERROR (§ 846) — FINDINGS — CONCLUSIVENESS.

Where a case was tried by the court without a jury, and no declarations of law were given, the judgment supported by evidence on any theory of the case must be affirmed.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by H. H. Hanenkratt against T. H. Brougham. From a judgment for plaintiff, defendant appeals. Affirmed.

Bruce Barnett, of Kansas City, for appellant. Bowersock, Hall & Hook, of Kansas City, for respondent.

ELLISON, J.

Plaintiff's action is based on a written contract for grading certain streets in Kansas City. He recovered judgment in the circuit court.

It appears that the contract was with defendant and another; the latter to pay for three-fourths of the work and defendant one-fourth. The petition alleges performance of the contract on plaintiff's part, and defendant claims that the evidence shows nonperformance and a waiver of performance, and that one "cannot plead performance of a contract and rely upon a waiver in any case except upon an insurance policy." Thompson v. St. Charles County, 227 Mo. 220, 126 S. W. 1044.

That is a correct statement of the law as announced in this state. But plaintiff does not rely upon a waiver. Under the terms of the contract, the grading was to be done by excavating at certain places and filling at others. There was evidence tending to show that the work was done under the supervision of defendant or his co-contractor and as directed, and that it was so done and was accepted and partly paid for. We think this is ample evidence of performance; indeed it is well nigh conclusive, notwithstanding excerpts from the testimony presented to us in defendant's brief.

This case was tried by the court without the aid of a jury and no declarations of law were given. Hence, if...