Real Estate Directory & Information Bureau v. Turner

The plaintiff pleaded full performance of the contract upon its part. The evidence shows that strictly it did not perform all the terms of the contract. It may be that the terms of the contract, which were not performed by the plaintiff, were waived by the defendant’s acceptance of subsequent-service by the'plaintiff. It is well settled that a party cannot recover upon the theory of a waiver under an allegation of perfonnance in his pleading.

The complaint was, therefore, properly dismissed at the close of the case, and the judgment appealed from is affirmed, with costs.