Bellevue Farmers Grain Co. v. Fronizer

Citations

• 35 Ohio C.C. Dec. 213
• 25 Ohio C.C. (n.s.) 151

Syllabus

<p>CONTRACTS</p> <p>1. Proof Clear and Convincing Prerequisite to Waiver of Written Contract.</p> <p>In an action for recovery of the balance of the contract price for construction of a grain elevator, under a contract which provided that no claims should be made for extra work unless such work was done in pursuance of a written order from the party for whom the work was being performed, a claim for extras having been asserted, based on a request for such extras and their being furnished under circumstances which evidenced an expectation of payment, it is error to refuse a special charge, requested before argument, to the effect that waiver of the condition of the contract as to extras can only be shown by evidence so clear and convincing as to leave no reasonable doubt with reference thereto.</p> <p>2. Indemnity Clause to Builder of Elevator Construed as Warranty and Compliance with Contract Terms as to Material not Sufficient.</p> <p>The provision in said contract to the effect that the contractors should indemnify and save harmless those for whom the elevator was being constructed from any injury or damage by reason of failure of the elevator or its equipment to be serviceable for the purpose intended, constituted an express warranty, and wlien read in connection witk other provisions of the contract is not open to the construction that, if the material used and work done were in accordance with the plans and specifications agreed upon before the work was undertaken, the contractors would be relieved from responsibility for any failure of the elevator to serve the purpose intended.</p> <p>3. Damages for Failure to Structure within Time Prescribed.</p> <p>It is erroneous, in such a case, to direct the jury to allow no damages for failure fo complete the structure within the time specified, if the defendants by acts, conduct or statements extended the time, without regard to the extent to which plaintiffs were delayed in their work by such acts, conduct or statemen