The opinion of the Court was delivered by
Mercur, J.This action was on an entire contract. On such a contract, before a recovery can be had of the consideration-money, the genera] rule is, the plaintiff must prove he has performed or is ready to perform his part of the contract; or that performance thereof was prevented by the defendant: Shaw v. Turnpike Company, 2 P. & W., 454. A substantial performance in good faith, however, is sufficient, notwithstanding some uuimportant omissions, which may be compensated in damages; and more especially is this so, when the other party has received and enjoyed the fruit of the labor performed: Preston v. Finney, 2 W. & S., 53 ; Chambers v. Jaynes, 4 Barr, 39 ; Danville Bridge Company v. Pomroy, 3 Harris, 151 ; Messner v. Lancaster County, 23 Penn. St., 291 ; Snodgrass v. Gavit, 4 Casey, 221 ; Stewart v. McQuaide, 12 Wright, 191.
This machinery in question was placed in the mill of the plaintiffs in error, and put in operative condition. It commenced running on the 25th of May. Some complaint was afterwards made, and communicated to the defendants in error early in June, that the machinery had not the requisite power, and did not work satisfactorily. He promised to send a man with the view of making it satisfactory. Through some cause the skilled machinist did not reach the premises until the 11th of June, and he then ascertained that the mill had previously burned down. ' This necessarily prevented the engine being tested at that time. The mill was rebuilt. The evidence in regard to the power of the engine and the ' working of the machinery was conflicting. There was also some evidence of a refusal by the plaintiffs in error to permit the machinery to be tested by the agent of the manufacturer sent for that purpose after the mill was rebuilt. All these questions, as well as whether there was a substantial performance of the contract, were for the jury, to which they were submitted in a clear and correct charge. We discover no ambiguity or want of perspicuity therein calculated to.mislead the jury. The law was correctly declared. The evidence was not unduly commented upon. We discover no errors covered by the assignments.
Judgment affirmed.