Stewart v. Spalding

Citations

• 23 Haw. 502
• 1916 Haw. LEXIS 50

Syllabus

<p>Contracts — arbitration—condition -precedent to action.</p> <p>Where, by the terms of a contract, an obligation to submit a question to arbitration depends upon a condition precedent, as that a disagreement shall have arisen, the party who sets up the agreement as a condition precedent to the maintenance of an action upon the contract must show that a disagreement did occur whereby a question to arbitrate was raised.</p> <p>Same — building contract — departure from, terms.</p> <p>Where a building contract provides that no alterations shall be made in the work except upon the written order of the architect, and no extra compensation shall be due the contractor for work or material except in accordance with a written agreement or by order of the architect with the approval of the owner, and it is shown that the requirements were not lived up to, but that verbal orders were given, received and acted upon, neither party may set up the provision of the contract to defeat the just claims of the other.</p> <p>Same — same—parol evidence not admissible to vary.</p> <p>In an action on a contract for the erection of a building for an agreed price in accordance with certain plans and specifications, the contract containing a provision as to further compensation for extra work, parol evidence that at the time the contract was entered into a different understanding was had as to the amount of work to be done for the agreed price is not admissible.</p> <p>Sáme — same—time—waiver—action on express contract.</p> <p>Though time be of the essence of a building contract and performance within the time specified is not shown, an action on the express contract may nevertheless be maintained if the requirement as to time was waived by the owner, and the plaintiff may recover by showing that he completed the work in a reasonable time after the date named in the contract.</p> <p>Waiver — question of law or fact.</p> <p>The question of waiver is usually a mixed one of law and fact for the