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.