On appeal from the Essex County Circuit Court.
For the appellants, Aaron Marder.
For the respondent, William N. Becker.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment upon verdict in favor of the plaintiff below in an action to recover upon a contract for plumbing work in the building known as 376 Williams street, East Orange.
The complaint consists of two paragraphs, the first alleging a verbal contract entered into between the parties on October 3d, 1928, whereby plaintiff agreed to furnish the labor and materials necessary to complete the plumbing work in the aforesaid building for the sum of $1,500 and whereby the defendants agreed, upon performance, to pay such sum to the plaintiff, and the second alleging that the plaintiff "did and performed all things required to be done and performed by him" and was on November 23d, 1928, paid by defendants $750 on account, leaving a balance of $750 due and unpaid and demanded by the plaintiff with interest from November 23d, 1928.
To this complaint the defendants pleaded the general issue in this language: "They deny the truth of the matters contained in the complaint."
At the trial of issue thus tendered the defendants-appellants attempted to show by a witness, who was a plumber, that some eighty-two stop valves were missing as where also certain slop sinks and he was asked upon direct examination upon the part of the defendants by whom he was offered.
"Q. Do you remember what your bill was for fixing up these odds and ends when you went there?"
This was objected to upon the ground that the plaintiff had in his complaint alleged, generally, performance of his contract with the defendants and they not having specifically alleged non-performance were precluded from showing specific non-performance but that such pleadings raised only the issue of no contract or complete non-performance if there were a contract.
This ruling was rested upon section 118 of the Practice act of 1903 (Pamph. L. 1903, p. 570; 3 Comp. Stat., p. 4089), which is as follows:
"Either party to an action may aver performance of conditions precedent generally; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition ...