Sisson v. Willard

By the Court,

Nelson, Oh. J.

I think the referee erred. The defendants offered to prove that the work did not answer the description in the contract, for the purpose of preventing recovery, or at least to reduce the amount: which evidence was rejected. The only plausible ground for the exclusion is, the want of notice under the general issue. Had the defence stood exclusively upon a breach of the warranty, I admit the ruling to be correct, 8 Wend. 109 ; but it did not.

The plaintiffs were bound to show performance in the first instance ; that the machinery and materials for the erection of the steam-mill, as far as they were bound to furnish the same, were good, and that all the work was done with proper skill, and in a workmanlike manner ; and whatever they were bound to prove, as pre-requisites to a recovery, might be disproved by the adverse party.

Report set aside.