Peter W. Myers, Respondent, v. Charles A. Willard, Appellant

Peter W. Myers, Respondent, v. Charles A. Willard, Appellant. (Argued February 23, 1875; decided March 23, 1875.) This action was brought against defendant as the guarantor of a contract between plaintiff and one Frink. Frink had entered into a, contract to do certain dredging for A. M. White, to be paid for when done to the satisfaction of White or of Wells, his engineer. Frink sub-let the work to plaintiff, and defendant guaranteed payment by Frink. The prominent defence was the non-performance of the contract. The evidence was conflicting. It appeared that upon the report of one Valentine, who superintended the soundings for plaintiff, Wells certified to the performance, and White paid Frink in full. Valentine testified that the average depth was six inches less than called for by the contract. White testified that he was satisfied with the performance. Held, that Frink, having received payment upon the ground that plaintiff had performed, was not in a favorable position to deny performance, and that a refusal- to nonsuit was not error. P. S. Crooke for the appellant. J. T. Marean for the respondent. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for affirmance. All concur. Judgment affirmed.