
    JOHN PECK, vs. JOSEPH M'MURTRY.
    
      On an appeal from a judgment of the Montgomery circuit court.
    
    12 June, 1820.
    An averment of notice of a fact need not be inserted in a declaration, if that fact is reasonably as well within knowledge of the deft. as of the pl’tff, or of deft. has the means of ascertaining the happening of the contingency. Vide ante, Keys vs Powell & Co. ac.
   Judge Owsley

delivered the opinion of the court.

This action was brought by M’Murtry upon the following writing:—

“I agree to pay Joseph M’Murtry three hundred dollars, so soon as he digs and bores two hundred feet on Triplet’s creek, Fleming county, or three dollars for every foot over one hundred feet, and not exceeding two hundred feet— Witness my hand and seal this 20th June, 1818.
'“JOHN PECK, [Seal.]”

The declaration of M’Murtry alledges a performance of the work on his part, and the failure of Peck to pay, but fails to aver notice to Peck of the work having been performed. Whether, therefore, notice should have been averred, is the only question for the decision of this court.

We think no averment of notice was necessary.

As the boring and digging was to be done for Peck, it was certainly incumbent on him to designate the place before M’Murtry could regularly proceed with the work. Peck, therefore, must be presumed to know the place, and was consequently furnished with the means of ascertaining whether or not the work was performed; and if so, it cannot have been necessary for notice of the work having been done to be given him by M’Murtry: for notice is never necessary, unless the thing to be performed lies more properly in the knowledge of the plaintiff, and from its nature the defendant cannot be presumed to possess means of ascertaining its performance.

The decision of the circuit court, overruling Peck’s demurrer to the declaration, was therefore correct.

The judgment must be affirmed with cost and damages.  