delivered the opinion of the Court.
Mr. Oh. J. Murray concurred.The action is for the payment which, by the terms of the written contract, was to be made in September, on account of the work done in September. It is objected to the recovery, that the stipulated amount of work for the month was greater than that performed, and, therefore, the averment of performance is not sustained by the contract. It is well shown, however, by the pleadings, and the special finding, that the quantity of work was diminished at the instance and request of the defendant. This must be regarded as a waiver, which excuses the performance. But if, as is contended by the plaintiffs in error, it is a parol variation of an agreement under seal, such variation will be upheld after its execution, because one will not be permitted to take advantage of the non-performance of that which he prevented. (Green v. Wells, 2 Cal. 584.)
Judgment affirmed.