p. 513In- such action the defendant is not bound to establish plaintiff’s non-performance, of the contract.
Where a letter is received in evidence, one in answer thereto is admissible.
Appeal by the defendant from a judgment of the City Court of the city óf hfew York entered in favor of the plaintiff upon the verdict of a jury.
John Larkin, for appellant.
Konneson, Emley & Bubino (Jay if oble Emley, of counsel), for respondent.
The defendant, through his architect, entered into ah agreement whereby the plaintiff was- to furnish and place in position the gas and electric fixtures for the defendant’s residence, barn and gardener’s cottage at Greenwich, Conn., for the sum of $1,900. Full size drawings and models of the fixtures were to be submitted for the approval of the architect before proceeding with the work. The plaintiff is an Illinois corporation having its place of business in Chicago, where defendant’s architect was also located. The drawings and models were submitted to, and approved by, the architect, and the goods shipped. But plaintiff failed to prove that the contract was either fully or substantially .performed -in so far as installing the fixtures in defendant’s building was, concerned. - In his brief. respondent’s counsel takes the stand that the words “ place in position ” do not mean install, and calls -it a “ false assumption ” and a “ preposterous contention throughout the trial ” of .appellant’s counsel. When we turn to the plaintiff’s complaint, we find the contract thus alleged,plaintiff agreed to furnish certain gas and electric fixtures and install the same ” and further “ that plaintiff thereafter and in pursuance of .said agreement duly furnished and completely installed all of said fixtures above referred to, in accordance with the said agreement.” Despondent should have read his own pleading.Jbefore writing his wholly unjustifiable attack upon his adversary.
Plaintiff employed a Hr. Fuller, an electrician of Green
p. 514wich, to do the work of installing these fixtures. Fuller was not called as a witness, nor was his deposition taken, nor his absence explained. Eo evidence was offered by plaintiff tending to prove that the fixtures were installed, except to read from the deposition of the defendant taken before trial this question and answer:
“ Q. Outside of these six brackets everything else was put up, was it not? A. In a wav.” This is far from being sufficient to prove complete or substantial performance. The court deemed this sufficient to make out a
prima facie case, and held that the burden rested upon the defendant to prove non-performance, but, when the defendant was on the stand, sustained objection to. his explaining his testimony before trial, or to his testifying to the exact conditions with respect to the installation of the fixtures. Several errors were committed in ruling upon the admission and exclusion of evidence and in the charge, referable to the erroneous theory that the burden rested upon the defendant to establish non-performance. We do not deem it necessary to refer to them in detail, as a new trial must be had and we do not believe that they would be repeated.. The rejection of the letters written by defendant to plaintiff was error. Plaintiff had put in evidence several letters of the parties, and these were a part of the same correspondence, and purported on their face to be answers to letters in evidence and were therefore admissible. The rejection of Exhibit G was particularly prejudicial. Plaintiff had offered in evidence a letter written by plaintiff to defendant which contained a detailed statement of plaintiff’s contention. This letter, not answered, might afford the basis of an admission of the facts therein stated. Exhibit G- was the defendant’s answer to this letter and should "have been admitted.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.,
Sbabury and Lehman,.!.!., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event. , .