“One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its non-performance. In other words, he who prevents a thing from being done shall never be permitted to avail himself of the non-performance which he himself has occasioned.”
How later courts described this case
- “One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its non-performance. In other words, he who prevents a thing from being done shall never be permitted to avail himself of the non-performance which he himself has occasioned.”
Written by the judges who cited it.
The opinion
MR. JUSTICE MORRIS:
I concur in the result in the foregoing opinion but not in all that is said therein.
This is an action to foreclose a mechanic’s and material-man’s lien and too much emphasis is given to the written contract originally entered into. By paragraph 4 of the complaint and by arguments of counsel it appears that the original written contract ivas altered by subsequent oral understandings, and the cost of the improvements heavily increased. Such alterations in the contract were made prior to performance of things to which they related and such alterations were not made in writing in accordance with section 756.9, Revised Codes, which provides:
“A
contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.” Such being the law in the premises, the original written contract was improperly given any consideration, except that it might have been introduced in evidence to show the understanding as to the wages to be allowed the workmen it was necessary to employ in making the improvements and likewise to fix the percentage to be allowed the contractor on the cost of material and labor, if such questions had been made an issue in the case. i
Rehearing denied January 11, 1944.