| Mo. Ct. App. | May 27, 1912
Plaintiff ’s action is based on a written contract for grading certain streets in Kansas City. He recovered judgment in tbe circuit court.
It appears that the contract was with defendant and another, the latter to pay for three-fourths of the work and defendant one-fourth. The petition alleges performance of the contract on plaintiff’s part and defendant claims that the evidence shows non-performance and a waiver of performance, and that one ‘ ‘ cannot plead performance of a contract and rely upon a waiver in any case except upon an insurance policy.” [Thompson v. St. Charles County, 227 Mo. 220" date_filed="1910-03-31" court="Mo." case_name="Thompson v. St. Charles County">227 Mo. 220.]
That is a correct statement of the law as announced in this state. But plaintiff does not rely upon a waiver. Under the terms of the contract the grading was to be done by excavating at certain places and fining at others. There was evidence tending to show that the work was done under the supervision of defendant or his cocontractor and as directed; and that it was so done and was accepted and partly paid for. We think this is ample evidence of performance; indeed it is well nigh conclusive, notwithstanding excerpts from the testimony presented to us in defendant’s brief.
This case was tried by the court without the aid of a jury and no .declarations of law were given. Hence, if there is any evidence tending to support the judgment, on any theory of the case as presented, it must be affirmed. [Wischmeyer v. Richardson, 153 Mo. 556" date_filed="1900-01-23" court="Mo." case_name="Wischmeyer v. Richardson">153 Mo. 556; Peoples’ Nat. Bank v. Central Trust Co., 179 Mo. 648" date_filed="1904-02-10" court="Mo." case_name="People's National Bank v. Central Trust Co.">179 Mo. 648.] Under this familiar rule of law, we must affirm the judgment.