8 Wend. 399 | N.Y. Sup. Ct. | 1832
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
Judgment affirmed with single costs.