By the Court, Savage, Ch. J.
It is not denied by the counsel for the plaintiff that the judge or court at nisiprius ought to nonsuit the plaintiff, when he does not produce sufficient evidence to warrant a verdict in his favour *, but it is contended that sufficient was shewn to justify a recovery in favor of the plaintiff for the balance of the $10,000 remaining unpaid. The plaintiff, in his declaration, had stated his cause of action to be a balance due him upon a contract under seal, and of course, set forth the contract. As it appeared by the contract that the money was not to be paid until the stipulated labor was performed, he was bound either to aver performance, or *402°®"er an excuse f°r non-performance. He therefore averred 3 qualified performance, and an acceptance thereof by the de~ fendants. Had he simply averred that he performed his part the contract as nearly as it was possible, and said nothing about an acceptance, I apprehend the declaration would have been bad. It would, in such case, be a sufficient answer for the defendants to say, that they were to pay upon the performance by the plaintiff of a certain act; if he cannot perform, we are not obliged to pay. At any rate, the plaintiff did aver an acceptance of what was , done by him, as a performance. This the defendants deny: and this was the only matter in dispute between the parties. It is true there were three issues : 1. Upon non est factum; 2. Payment; and 3. Acceptance of performance. Under this state of the pleadings, the plaintiff at the trial was bound to prove,"!, the execution of the contract, and 2. perforante on his part, before the defendant could be required to make any defence. The execution of the instrument was admitted, and the amount paid was also admitted, which admission, however, was permature, for the defendant was under no necessity to prove payments until the plaintiff had made out his case. That two issues, therefore, were found or conceded in favor of the plaintiff, is not strictly true, for the defendant denied all liability to make the last payment mentioned in the contract, until the plaintiff should have performed his part of the agreement. The plaintiff had only proved the contract, which alone did not sustain his action ; he was bound further, to prove a breach of it by the defendant, and that could not happen until the plaintiff had performed on his part. The averment of partial performance was not enough to cast an acceptance upon the defendant. The question then is, was there sufficient evidence to prove an acceptance by the defendants ? The only evidence that had any bearing on the question is what was said by Mr. Jay, which amounts to nothing, under the circumstances of this case; he merely said that the business ought to be amicably settled, but he had had no agency in the management of the business, and knew nothing" about it. -It is not pretended that Mr. Munroe accepted the work as a performance of the ¡contract; and the memorial afterwards presented to the corporation shews *403'¿hat there had never been an acceptance. There was not, therefore, sufficient evidence to support this issue; but the contrary was proved by the plaintiff’s own evidence. The non-suit was right, and the court properly refused to set it aside.
Judgment affirmed with single costs.