Fogarty v. Witty

Pee Curiam,

The appellant, Witty, is one of two defendants against whom a judgment was obtained in an action on a written contract for the erection of a building in accordance with certain plans and specifications. A recovery in the action was resisted by both defendants. on the ground of failure of the plaintiff to substantially perform the contract and by Witty for the additional reason alleged by him that he had been released from his contract obligations by the plaintiff. The first ground of defense was submitted to the jury with full and accurate instructions to which we find no valid objection. The second ground was not sustained by proof received and the offers of testimony rejected would not have sustained it, if admitted. The offers were not to prove that the plaintiff had released Witty or that they had mutually released each other — they went only to the extent of showing that Witty had withdrawn from the enterprise into which he and his coobligor entered and that of this he had notified the plaintiff.

We find no error in the record and the judgment is affirmed.