
    Burns vs. Welch.
    A. contracted to saw and deliver plank, as fast as practicable, at certain mills specified. He was sued for a breach of the contract, in not delivering as fast as practicable. The plaintiff offered to prove by a witness, that he was acquainted with saw mills, and their construction, and that he was acquainted with the mill mentioned in the contract, in 1831, but had not known any thing of her since; and that, in his opinion, she would then saw from four to five hundred feet per day: Held, that the testimony was competent.
    When a defendant, by contract, was to deliver plank and lumber at his mill, and he was notified what description of plank and lumber to deliver: It was held, that the plaintiff need not prove, he attended to.receive the lumber; but that it was the duty of the defendant to prove, he sawed and had the lumber ready at his mill to .deliver, &c., which would have bars red the plaintiff’s action.
    This action is founded upon the following contract: “This memorandum shows, that I am indebted to John W. Welch two hundred and twenty-five dollars, in lumber and plank, at the customary price, and at the mills formerly belonging to said Welch, which I promise to saw and deliver as fast as practicable, when there is water to saw with; for valuó received, this 22d January, 1833.”
    The plaintiff notified the defendant, on the 28th June, 1833, what description of lumber and plank he wanted. Upon the trial, there was no proof that the plaintiff ever attended to receive the lumber.
    The action was commenced on the - and the defence relied upon was, that it was not practicable ■for the mill to saw the quantity required to discharge the plaintiff’s note in the time. Upon the trial, various witnesses were examined as to this point, and the plaintiff offered Solomon Enty, to prove, that he was acquainted with saw mills and their construction; andthathe became acquainted with the' mill mentioned in the contract, in 1831, but had not known any thing of it since; and that, in his opinion, she would then saw from four to five hundred feet per day. The jury found a verdict for the plaintiff; a new trial was moved for and refused; and from the judgment . . J rendered, an appeal in error prosecuted to this court.
    
      A. L.Marlin and V. D. Barry, for plaintiffs in error.
    The plaintiff in error insists, that the circuit court erred in refusing to grant a new trial:
    1. Because of the admission of the evidence of Solomon Enty, it not being the best the nature of the case admitted, nor tending to confirm, but rather to contradict his former witness. Norris Peake 15; 4 Mass. Rep. 64-6, Commonwealth vs. Kinison.
    2. Because there was no evidence that plaintiff attended to'receive the lumber according to notice.
    3. Because there was no proof sufficient, that the lumber could have been sooner sawed and delivered.
    
      W. Stoddart, for defendant in error.
    Burns broke his contract. The proof shows, he did not have it sawed as fast as was practicable, and that if Welch had waited for him to saw the plank, he would have had to wait always. Two witnesses prove it could easily have been sawed during the season. The lumber required, at 300 feet a day, could have been sawed in 75 days. The sawing season was from December till May, 5 months. As to Enty’s evidence being admissable, see 1 Starkie 74; 3 Starkie 1736. The place and time are both specified. The place, at the mills; the time, as fast as practicable. Burns" should have sawed and deposited at the mill, for Welch, as fast as he could; and having failed to do so, should have paid Welch the money.
   Green, J.

delivered the opinion of the court.

The principal question insisted upon is as to the competency of the testimony of Solomon Enty, which was objected to by the defendant, but admitted by the court. The witness proved, that he was acquainted with saw mills, and their construction; and that he was acquainted with the mill mentioned in the above contract, in 1831, buthad'not known any thing of her since; and that, in his opinion, she would then saw from four to five hundred feet per day. This ■ testimony, the court think, was properly admitted, upon two grounds: First; the witness is acquainted with saw mills, and knows what can be done by them; his opinion, therefore, as to what a mill could saw, as a person skilled on such subjects, was proper evidence. 1 Starkie 74; 3 Starkie 1736. But, on the other ground, his testimony was admissable. The question was, as to the capacity of the mill to have sawed the lumber, agreed to be paid by this contract, before the suit was brought. Although the witness did not have personal knowledge of the mill at the time the contract was made, and, therefore, could not speak positively of her capacity at that 'time; yet, as he had knowledge of her a few years before, it might be fairly inferred from what she could then do,, that the same amount of work could have been performed by her after the contract was made, unless the defendant should be able to show that her condition was different. But it is said, this was not the best evidence, it is true, it was not so conclusive of the fact, as other evidence that might have been produced; but the objection attempted to be set up, does not apply. The evidence of this witness, is of as high grade as the positive swear-' ing of a witness as to what the mill could do, though it is not so conclusive of the fact;

It was not necessary to have shown, that the plaintiff attended to receive the lumber. If' the defendant had shown, that it was sawed and ready at the mill, where it was to have been delivered, that would have been sufficient to bar the plaintiff’s action. Robbins vs. Luce, 4 Mass. Rep. 474.

We cannot say, there was not sufficient evidence, that the lumber could have been sawed and delivered before tile commencement of this suit. Although the testimony upon this point is not very conclusive, yet it is of such character, that we cannot say the jury found a -verdict against the evidence. Let the judgment be affirmed.

Judgment affirmed.  