Blair v. Wilkeson Coal & Coke Co.

Citations

• 54 Wash. 334
• 103 P. 18
• 1909 Wash. LEXIS 996

Syllabus

<p>Pleading — Variance—Waiver of Objection. In an action, to recover for services rendered, the defendant cannot claim a variance in that the complaint was for the breach of an express contract, while the case made was on quantum meruit for services rendered, Where it appears that the complaint was susceptible of two constructions, covering either phase of the case, and the defendant had not' moved that it be made more definite' and certain or required that plaintiffs make an election before the trial.</p> <p>Contracts — Performance—Excuse for Nonperformance. In an action on an express contract for services, failure of the plaintiffs to perform their part is excused by acts of the defendant preventing performance.</p> <p>Same — Preventing Performance — Demand — Necessity. In an action for a balance due upon contract, an express demand that plaintiffs be allowed to complete performance on their part is not necessary when defendant ordered plaintiffs to quit work and refused further payments.</p> <p>Appeal — Review—Findings. In an action tried before the court without a jury, insufficiency of the findings is immaterial where the evidence justifies the judgment.</p>