
    WILDER v. LITTLE.
    Contract for work — condition precedent — duplicity in pleading.
    When on a contract for work, the plea allege that the plaintiff was not ready to have the work done, and also, that he refused to accept the work, it is bad for duplicity.
    On a contract for work on a frame barn, when no place is designated for d.oing the work, the plaintiff in declaring must aver essential to his title, lhathe provided a frame on which the work could be done, and gave notice to the defendant.
    Error to the Common Pleas. The plaintiff counted below in assumpsit upon a special contract of the defendant to pay forty-five dollars, on or before the 30th of March, 1826, in work on a frame barn, for the rent of a piece of land, which he had enjoyed. The breach alleges a readiness to receive the work on a frame barn, but that the defendant had not done it. Pleas : 1. Non assumpsit. 2. That the defendant "was ready to do the work, but the plaintiff had no frame barn on which to do it, but neglected to provide one, with a traverse of the plaintiff’s readiness to accept and the defendant’s refusal to do, &c. The plaintiff demurred to the second plea *for duplicity, which the court overruled, and gave judgment [389 for the defendant. In this it is alleged the court erred.
   BY THE COURT.

That the plaintiff neglected to provide a frame on which to do the work, is one substantive defence: the denial of the plaintiff’s readiness to accept the work, may possibly be the negative of the same defence; but that the plaintiff refused to accept the work, is a distinct matter, repugnant to the denial of his readiness, inasmuch as it supposes the readiness, the offer to perform, and the refusal. There being then two distinct matters in the plea, not dependent upon each other, makes the plea bad for duplicity. If, therefore, the declaration is good, the court was wrong in overruling the demurrer.

Is the declaration good? It sets out the contract, and avers a general readiness to receive the work. This is insufficient; where the performance of the defendant depends upon an act of the plaintiff, he should aver the performance of the act distinctly as essential to his title to recover, with notice to his adversary, unless the act be such that he is bound to take notice of it. We think this case one of the kind; and that the plaintiff was bound .to aver the existence, or preparation of the frame of the barn, on which the work was to be done; and, as the contract designates no place where it ,was to be done, that the defendant had notice. We think the omission of this averment vitiates the declaration, and that the demurrer was properly overruled.

The judgment is affirmed.  