
    
      Sisson and Parmelee vs. Willard and others.
    In an action on a contract, where the plaintiff is bound to show performance on his part to entitle himself to a recovery, the defendant may, under the plea of the general issue, show a non-compliance on the part of the plaintiff; it is not necessary, in such case, to gioe notice of the defence.
    This was an action of assumpsit, to recover the sum agreed to be paid by the defendants to the plaintiffs, for converting a saw-mill into a steam-mill, the plaintiffs finding all the necessary machinery, and warranting the mill to do a good business, so as to saw 2,000 feet of pine timber in twelve hours. The cause was heard before a referee, who reported $434.28 in favor of the plaintiffs. The defendants moved to set aside the report on the ground that the referee rejected evidence offered by them, to [ *374 ] show that the engine, erected by *the plaintiffs, was worthless, by reason of intrinsic defects in its plan and construction, and did not-conform to the terms of the contract.
    
      
      M. T. Reynolds, for the defendants.
    
      A. Taber, for the plaintiffs.
   By the Court,

Nelson, Oh. J.

I think the referee erred. The defendants offered to prove that the work did not answer the description in the contract, for the purpose of preventing recovery, or at least to reduce the amount: which evidence was rejected. The only plausible ground for the exclusion is, the want of notice under the general issue. Had the defence stood exclusively upon a breach of the warranty, I admit the ruling to be correct, 8 Wend. 109 ; but it did not.

The plaintiffs were bound to show performance in the first instance ; that the machinery and materials for the erection of the steam-mill, as far as they were bound to furnish the same, were good, and that all the work was done with proper skill, and in a workmanlike manner ; and whatever they were bound to prove, as pre-requisites to a recovery, might be disproved by the adverse party.

Report set aside.  