The plaintiffs bring their action to recover the price of “ one six ton scale,” sold and delivered by them to the defendant. The answer of the defendant does not deny the sale and delivery, but avers that there was a special contract that the scale should be of a certain quality, and that it did not correspond to the contract and was of no value.
Under these pleadings, the burden of proof was on the defendant to prove the contract which he had alleged, and also the breach of it. The ruling of the judge on this point was in conformity with our statute, and with the general rules of plead ing and evidence. Gen. Sts. c. 129, §§ 17, 27. Dorr v. Fisher, 1 Cush. 271.
The offer to prove that a notice was served on the plaintiffs to take away the scale and replace the old one was properly rejected. The answer did not raise any question as to the sale and delivery by the plaintiffs, or the acceptance by the defend ant. It put the defendant’s case exclusively upon the contract as to the quality of the article, the breach of it, and the consequent damages. The notice could not be pertinent to either of these points.
The contract proved was for a six ton scale, equal in every respect to the scale referred to. The ruling contained a proper interpretation of this contract, and a proper rule of damages, in case the jury should find the article in any respect defective. The contract did not require a scale that would weigh more than six tons, nor did it refer to what is sold in the market as such. Exceptions overruled.