
    John McGregory vs. Benjamin T. Prescott.
    The judge, before whom an action is on trial, cannot he required by the defendant to express an opinion upon the weight and sufficiency of the plaintiff’s evidence, or whether the plaintiff has made out a primá facie case, unless the defendant means to submit the case to the jury on that evidence.
    If a defendant moves for a nonsuit, and afterwards offers evidence in defence, this is a waiver of the motion.
    In declaring on a contract, a breach is sufficiently averred, by alleging a request of performance in the terms of the contract.
    In an action on an affirmative contract, as to pay money or perform some duty, if the plaintiff proves the contract, he is not bound to give evidence of non-perform-once ; it is then incumbent on the defendant to prove payment or performance, or its equivalent.
    This was an action on the case on a special contract, dated May 22d, 1847, by which the defendant, a dentist, in Boston, undertook to send to the plaintiff, also a dentist, in Boston, custom in his business of dentistry, within six months, from which the plaintiff should realize the net profit of one hundred dollars; the plaintiff alleging in his declaration, after setting out the contract, that although the six months had long since elapsed, the defendant had not sent to the plaintiff custom in his business of dentistry, from which the plaintiff had realized a net profit of $100, but refused so to do. The defendant pleaded the general issue, and filed a specification of his defence, setting forth a performance of the contract on his part, and enumerating in detail the particular cases sent to the plaintiff.
    At the trial, before Bigeloiv, J., in the court of common pleas, the plaintiff gave evidence of the contract, and there rested his case. The defendant thereupon asked the court to rule that the plaintiff had not made out a prima facie case, and could not maintain this action for the following reasons : 1st. Because the plaintiff had not shown any breach of the contract on the part of the defendant, or offered any evidence tending to show any such breach ; 2d. Because it did not appear from the plaintiff’s declaration, or the proof offered by him, that the defendant did not, within the six months mentioned in the contract, and after the expiration thereof, pay and perform the contract to the satisfaction and acceptance of the plaintiff.
    On this motion being made, the plaintiff offered to abide by the decision of the court thereon, if the defendant would also rest his case there ; but the presiding judge declined to order him so to do, or to rule as the defendant requested, and stated that if the defendant had no evidence to offer, he should instruct the jury to find for the plaintiff. The defendant thereupon stated that he had evidence to produce, and introduced witnesses to prove that custom had been sent, in the instances mentioned in the specification of defence, under circumstances, which, the plaintiff contended, were such as to prevent their being allowed by the jury in performance of the contract. But there was no evidence, and it was not contended, that any other custom had been sent.
    The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    
      L. Mason, for the defendant.
    
      G. Minot and G. P. Judd, for the plaintiff, were not called upon. .
   By the Court.

The defendant had no right to require of the judge an opinion upon the weight and sufficiency of the evidence to support the plaintiff’s case, or whether the plaintiff had made out a primd facie case, unless he meant to leave the case on that evidence to the jury, under the direction of the court. Treating it as a motion for a nonsuit, the defendant waived it by offering evidence on his part.

As to the exception, that the plaintiff had set out no breach in his declaration, a breach is sufficiently averred in the declaration, by requesting performance in the terms of the contract. As to the further objection, that the plaintiff gave no evidence of the non-performance, it is against first principles. On an affirmative contract being proved to pay money or perform some duty, it is incumbent on the defendant to prove payment, performance or tender, or an excuse therefrom.

Exceptions overruled, with double costs.  