Hein v. Fox

1. Contracts ? Evidence supported finding of waiver of contract provision. In suit for damages for failure to finish drilling a well for water pursuant to terms of written contract, complaint an evidence in support thereof, showing that plaintiff had paid defendant $1,650 for drilling and that defendant had drilled two dry holes, showed that the parties had waived contract provision that contract should not be valid or binding unless approved by authorized representative of Farmers Home Administration of the United States Department of Agriculture, and hence defendant was not entitled to new trial after verdict for plaintiff on ground that complaint did not state a cause of action in that contract sued on had not been approved by named agency. 2. Pleading ? Duty of court to expedite action. Where trial court believes a complaint is subject to demurrer, proper ruling thereon should be made at earliest possible stage of proceedings, so that pleading may be amended, thereby avoiding wasted time, effort and expense. 3. Contracts ? Waiver of provisions of contract. Contract provision may be waived by mere voluntary expression of waiver or by continuing to render performance or by receiving further performance with knowledge that the condition has not been performed. 4. Contracts ? Knowledge no excuse for non-performance. Where a party enters into a contract knowing that permission of government officers will be required during course of performance, - Page 515 that such permission was not forthcoming when required does not constitute an excuse for non-performance. 5. Damages ? Damages not excessive. Award of $1,000 damages was not excessive in view of evidence that as a result of non-performance of contract plaintiff was without water for livestock, milking parlor and domestic purposes and lost his license to sell Grade A milk. 6. Contracts ? Effect of failure to use care in drawing contract. Courts can give no relief where parties to a contract find themselves minus expected profits through failure to exercise care in drawing up contract. 7. Contracts ? Construction of contract. Court must give effect to meaning and intention of parties as expressed in language of contract, in absence of showing of any legal impediment which would prevent parties from entering into contract or from expressing it in language of their own. 8. Contracts ? Enforcement of contracts ? Public policy. Courts enforce contracts as made, unless good morals or public policy are contravened. 9. Contracts ? Courts may not make new contract for parties. Courts have no right to make a contract for parties different from that actually entered into by them nor can courts permit parties themselves to make a new contract without the consent of all, upon any theory that original contract was not the most beneficial or advantageous, or that enterprise contemplated by terms of contract cannot be successfully operated under it. 10. Contracts ? Effect of reducing contract to writing. When a contract is reduced to writing, the writing is presumed to contain the final agreement arrived at between the parties and to express their real purpose and intent. 11. Contracts ? Inability to secure casing no excuse for non-performance. Inability of well driller to secure necessary casing because of market shortage thereof, even if it was due to war or government regulation, did not relieve driller of his duty under written contract to drill and complete a well for water. 12. Contracts ? Effect of war on duty of performance. Conditions arising from a state of war will not ordinarily constitute an excuse for non-performance of contract, in absence of statute to the contrary.