Kilby Mfg. Co. v. Hinchman-Renton Fire Proofing Co.

Citations

• 132 F. 957
• 1904 U.S. App. LEXIS 4359

Syllabus

<p>1. Building Contracts — Estoppel prom Enforcing Provisions bt Subsequent Acts — Waiver.</p> <p>Parties to written contracts may, by their subsequent acts, estop themselves from enforcing their provisions, and may waive them. Plaintiff agreed with Cooke, and Cooke made a contract with the defendant, to construct certain buildings according to plans furnished by the defendant These contracts provided that neither the defendant nor Cooke should be liable for any extra work or materials unless they were ordered in writing, and that the compensation for them should be estimated at the rates prescribed in the contracts for similar work. During the progress of the work the 'defendant orally requested the plaintiff to furnish 32 items of work and materials which the latter claimed were without the contracts. The plaintiff furnished them, and charged the defendant their reasonable value. The defendant admitted the charges for 26 of them' to be correct, and paid the charges for 6 of them. Held, each party was estopped by its acts from enforcing the two provisions of the contract cited to defeat the demands of the other, and the plaintiff’s action for the reasonable value of the alleged extras was maintainable.</p> <p>2. Contracts — Evidence—Testimony of Prior Negotiations — When Admissible.</p> <p>The contracts above specified required the contractors to pave the approaches to the sheds and to construct walls for them 9 feet high and 400 feet long. Parol evidence was admitted to the effect that before the contracts were let the defendant informed the plaintiff (1) that the approaches were required to be paved for a distance of 25 feet from the ends of the sheds, and (2) that each of the walls was required to be 7 feet and 6 inches high at one end and about 4 feet and 6 inches at the other, and that the defendant made its bid and contract in reliance upon these statements.</p> <p>Held, the testimony relative to the paving was admissible, but that concerning the walls was no