concurring.
I concur in the result reached. The trial court found that Kitsmiller intended to contract by itself with SDC “for the lobby foundations, house foundations, including floor slabs and all precasts on the Grand Palace Project in Branson....” The cost to SDC for this work as it was originally planned was $648,656. As of September 13, 1991, SDC had paid over $450,000 to Kitsmiller on this project but now claims there was no contract for the work Kitsmiller performed. No dispute exists in this case about the fact that SDC accepted the benefits bestowed upon it by Kitsmiller’s endeavors to perform the work described in the document SDC now denies is a contract.
The consequence of SDC’s acceptance of benefits is stated in the case of Dubail v. Medical West Bldg. Corp., 372 S.W.2d 128 (Mo.1963):
“ ‘As a general rule, by accepting benefits a person may be estopped from questioning the existence, validity, and effect of a contract. A party will not be allowed to assume the inconsistent position of affirming a contract in part by accepting or claiming its benefits, and disaffirming it in part by repudiating or avoiding its obligations, or burdens.’ ”
Id. at 132 (citing 31 C.J.S. Estoppel § 110, pp. 350-51). See also National Advertising Co. v. Herald, 735 S.W.2d 74, 78[5] (Mo.App.1987); Long v. Huffman, 557 S.W.2d 911, 915[11] (Mo.App.1977); Labor Discount Center, Inc. v. State Bank and Trust Co., 526 S.W.2d 407, 425[22] (Mo.App.1975). This basic principle has also been characterized in terms of acceptance of performance. See HDH Dev. and Realty, Corp. Inc. v. Smith, 717 S.W.2d 274, 277[3] (Mo.App.1986).
Implicit in the trial court’s judgment is a finding that SDC neither claimed the bene*919fits of Kitsmiller’s work performed under the AIA document nor accepted that firm’s performance thereunder. On this record, I believe that finding to be against the weight of the evidence. In my view, the trial court erred when it failed to find that SDC was estopped from questioning the existence of the contract, notwithstanding the court’s conclusion that there was no meeting of the minds and thus no contract. Kitsmiller makes this assertion of error, and I find it to be dispositive.