
    No. 749
    WITHROW et v. SPRAGUE et
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2777.
    Decided March 29, 1926
    297. CONTRACTS — 1. Defendant cannot claim that under contract, it has the right to decide whether contractor has fully performed, when contractor alleged full and complete performance.
    2. Such arbitrary finding would be even beyond the bounds a court might go.
    Attorneys — John D. Ellis and Ed. F. Alexander for Board; Dinsmore, Shohl & Sawyer for Sprague et; all of Cincinnati.
   HAMILTON, J.

James Sprague brought an action against the Board of Education in the Hamilton Common Pleas claiming a balance due on a contract for services as janitor in public schools. The Board denied full performance on part of Sprague, claiming it had the right to annul the contract under its terms; and filed a cross petition for its breach.

The Board’s answer averred that Sprague expressly waived in a letter, his rights to recover the money. The parties agreed to let the court render judgment for the party entitled thereto; and Sprague had judgment rendered-, in his favor. Error was prosecuted and the Court of Appeals held:

1. It must be recognized that if the case was heard on the pleadings, the allegations of full performance by Sprague must be taken as true; and that the finding by the Board to the contrary would be purely arbitrary.
2. If the waiver was an offer for payment of the admitted amount due and a compromise of the balance, the Board finding that there was not full performance would be arbitrary, since the record does not show that any compromise was ever effected.

Judgment affirmed.  