
    Patrick J. Whelton & another vs. John G. Tompson & another.
    Suffolk.
    November 14.—27, 1876.
    Ames & Devens, JJ., absent
    The declaration in an action of contract alleged that the plaintiff made an oral contract with the defendant, in which the defendant agreed to do certain work “ tc the satisfaction of the plaintiff.” Held, that such averment must be proved before recovery could be had for breach of the contract.
    Contract. The declaration alleged that the parties made an oral contract in which the defendants agreed to do certain work “ to the satisfaction of the plaintiffs,” and that the defendants wholly failed to perform the same. Answer, a general denial. Trial in the Superior Court, before Brigham, C. J., who allowed the following bill of exceptions:
    “ The defendants requested the court to instruct the jury that the plaintiffs, having set out a special contract, one element of which was that the work was to be done to the satisfaction of the plaintiffs, it was necessary that such averment should be proved before recovery could be had' for breach of that contract. The instructions given by the court were not excepted to by the defendants. The instruction asked for and refused was not given, either in form or substance. The verdict was for the plaintiffs, and the defendants alleged exceptions to the refusal of the court to give the instruction asked for.”
    
      J). F. Fitz gf J. Bl. Sherburne, for the defendants.
    
      P. A. Collins, for the plaintiffs.
   By the Court.

The ruling requested should have been given. As stated in the bill of exceptions, it did not relate to the proof of a breach, but to the proof of the terms of the contract declared on. If one of the terms alleged was not proved, there was a variance, and the plaintiffs could not recover undei iheir declaration. Exceptions sustained.  