Asplund v. Mattson

Citations

• 15 Wash. 328
• 46 P. 341
• 1896 Wash. LEXIS 190

Syllabus

<p>PLEADING — DEPARTURE — WAIVER OF OBJECTION — CONTRACT—BREACH — BURDEN OF PROOF.</p> <p>By proceeding to trial without raising the objection that the reply constitutes a departure from the cause of action set out in the complaint, the defendant waives his right to urge the objection on appeal.</p> <p>Where work under a contract has been suspended because of plaintiff’s inability to proceed therewith owing to acts of God preventing the work, there is no breach of contract, and where defendant enters and dispossesses plaintiff prior to the period fixed by the contract for completing the work, the burden of proof is on defendant, in an action to recover damages for breach of contract, to prove that plaintiff was not ready and willing to continue in the performance of said work and refused to go upon said land as soon as it was in condition to have work done upon it.</p>