
    WAIVER. OF FULL PERFORMANCE.
    Circuit Court of Cuyahoga County.
    John W. Williams et al v. A. C. Fortlage.
    Decided, June 7, 1910.
    
      Contract — Modification—Waiver.
    A contract provided that a house should be moved from the bottom of ' a hill to its summit, the owner expressed himself as satisfied with its position when it was placed by the mover at a point somewhat below the summit of the hill and the mover accordingly regarded his contract as fully performed. Held: This evidence does not present a cause of modification of a contract requiring a new consideration, but a case of waiver of full performance.
    
      Wm. M. Reynolds, for plaintiff in error.
    
      G. A. Besek, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   As indicated upon the hearing, we find ourselves unable to weigh the evidence in this case because one of the exhibits offered in evidence below is missing from tbe bill of execptions, never having been incorporated therein, for the reason that it could not be found. The only other error assigned is founded on the contention that the alleged modification of the contract sued upon was unsupported by consideration. The contract in question was for the moving of a house from the valley to the top of the bluff at Rocky River, but when the house was moved to a point somewhat below the summit, the owner expressed himself as satisfied with its position and the mover accordingly regarded his contract as fully performed.

These facts present not a case of modification of a contract requiring a new consideration, but only a case of waiver of some item of performance of the contract by a party entitled to insist upon or to waive such performance, as he may elect.

There being no error in the record before us, the judgment is affirmed.  