Benedict v. Harris

The principal contention of the defendants on this appeal is that the plaintiffs have failed to prove one of the essential elements of their cause of action, namely, performance on their part. They say that the plaintiffs admitted in their testimony that they did not, in every instance, fulfill their promise under the contract to pay for stock before removing it, and that while the defendants may have waived this provision of the contract, the complaint does not plead waiver, but rather performance, and since performance has not been shown, the findings are not supported by the evidence.

There…