Russell & Co. vs. Loomis. as note was given contained such defects as to render it practically useless for the purpose of reaping grain, the defense is sustained, and your verdict should be for the defendant, unless you find that he waived the benefit which the law gives a purchaser under an implied warranty." This charge was certainly quite as favorable to the plaintiffs as the law would allow, if not more so. For the machine was expressly warranted, as we have seen, to do as good work in grain well as in grass-as any other of its class in the market. But the court charged that if the machine contained such defects as to render it practically useless for the purpose of reaping grain, the defense was sustained, unless the defendant had waived the benefit which the law gives a purchaser under an implied warranty. It is quite evident that the defendant was not bound to prove that the machine was practically useless as a reaper, in order to show a breach of the express warranty. For when he proved that the machine failed to do as good work, either as a reaper or mower, as any other machine of its class, he established his right to rescind the contract. Throughout the charge there is some confusion in consequence of applying to the written warranty the same degree of liability as the law would impose in case of an implied warranty; but as the former embraced more than the latter, we cannot see that it was possible for the plaintiffs to have been injured by this indistinctness in the charge. For, under the ruling, they were held to a less responsibility than their contract really imposed upon them. No exception was taken to the charge wherein the jury were directed, in substance, that if, upon trial, the machine did not do good work, was in fact defective, and the plaintiffs, upon being notified, failed to put it in a condition to work well, the defendant had the right to return it; that an offer to return the machine after finding it defective, and a refusal to receive it, would have the same effect as though it had actually been returned. And in the same connection the jury were likewise Russell & Co. vs. Loomis. told, that if, after a fair trial, the defendant accepted the machine notwithstanding the defects it might contain, he was bound by the acceptance. We have already observed that the real issue tried was, whether or not the defendant had the right to return the machine and rescind the sale. He defended against a recovery on the note, on the ground that he had that right, and had exercised it within a reasonable time under the circumstances. No objection is taken to the charge upon this branch of the case. This brings us to the only remaining point we deem it necessary to notice: that is, whether the court erred in denying the motion for a new trial on the ground of newly discovered evidence. This newly discovered evidence is contained in the affidavit of Mr. Shrader. We have examined the affidavit, and think it furnishes no ground for granting the motion. The material facts stated in the affidavit are cumulative. It is true, he makes this statement as to what he observed or thought when he saw the defendant operating the machine at the time he called upon him: "The land," he says, "Loomis was cutting upon, was sandy land, light and dusty, and I then saw that he did not oil the machine as often as I would require a man to oil a machine of mine under the same circumstances." But this statement does not show, nor does it justify the inference, that the failure of the machine to work as warranted was in consequence of its not being sufficiently oiled. The defendant claimed that the machine worked badly because of the heating of the pitman box; but what caused that heating, was a question not satisfactorily explained by the evidence on the trial. It surely was not claimed by the plaintiffs that it was caused because the machine was not properly oiled. Nor does Shrader say that it was. He merely says that he would require a machine to be oftener oiled than this was. We therefore think, upon this affidavit, that the motion for a new trial was properly denied. Bertheolet vs. Parker, imp. It follows that the judgment of the circuit court must be affirmed. By the Court.-Judgment affirmed. BERTHEOLET VS. PARKER, imp. MECHANIC'S LIEN. (1) What petition must show. (2) Requisites of notice. 1. The petition of a subcontractor for a lien for work done upon a building (under ch. 153, R. S.) must show with whom the original contract for the erection or repair of the building was made, and that such person had an interest in the premises affected by the proceeding, upon which a lien can be enforced, or it is inadmissible in evidence in an action to enforce the lien, and cannot be aided by the complaint. [2. LYON, J., is also of the opinion that the notice required by the statute (sec. 2) must specify the sum for which the lien is claimed.] APPEAL from the Circuit Court for Crawford County. The defendants Reynolds & Lefeldt were employed by the defendant Mary E. Parker to erect, and did erect, a dwelling house for her on certain lots described in the complaint, situated in the city of Boscobel. The plaintiff performed labor for Reynolds & Lefeldt on such house, at a stipulated price, a balance of which remains unpaid. This action was to recover such balance of Reynolds & Lefeldt, and to enforce a lien therefor on such building and lots. Within the time prescribed by statute (R. S., ch. 153, sec. 2), the plaintiff served the following notice on Mrs. Parker: "To Mrs. Mary E. Parker, administratrix of the estate of D. T. Parker, deceased: MADAM: You are hereby notified that I, the undersigned, have done work as subcontractor under Messrs. Reynolds & Lefeldt, on the building owned by you as such administratrix, in the city of Boscobel, Wisconsin, situated in blocks 2 and 11 in Parker's addition to said city of Bertheolet vs. Parker, imp. Boscobel, according to the record plat thereof; and that my said work so done on your building as aforesaid, is unpaid for; and that I claim the benefit of the lien given and granted by ch. 153 of the revised statutes of Wisconsin, entitled 'of the liens of mechanics and others,' and of the several acts amendatory thereof. Dated this 2d day of September, 1875. "N. BERTHEOLET." The plaintiff also, in due time, filed in the proper office his claim or petition for a lien, in which he states (among other things) that the work for which he claims the lien, was performed by him as subcontractor under Reynolds & Lefeldt, "on the building and premises [describing them] belonging to the estate of Dwight T. Parker, deceased." There is no averment therein that the defendant Mary E. Parker has any interest in such premises. Mrs. Parker alone defended the action. Her answer is a general denial. On the trial, the petition for a lien was offered in evidence by the plaintiff, and received against the objection of Mrs. Parker. The trial resulted in a judgment against Mrs. Parker alone. The judg ment is, that plaintiff have a lien upon the right, title and interest of Mrs. Parker in and to the building and premises described in the complaint, which she had when notice of the plaintiff's claim for a lien was served on her, to the amount which was found due the plaintiff from Reynolds & Lefeldt, and costs. The jury found that when such notice was served, she owed Reynolds & Lefeldt a much greater sum than plaintiff recovered. The defendant Mrs. Parker appealed from the judgment. For the appellant, a brief was filed by Barber & Clementson, and the cause was argued orally by Mr. Clementson. They contended, among other things, 1. That the notice of plaintiff's claim given to Mrs. Parker was insufficient. (1) The action is for a lien upon a building situate upon two specified lots in block 2, and two specified lots in block 11, owned by her in fee simple; the lien claimed in the notice is Bertheolet vs. Parker, imp. upon a building "situated upon blocks 2 and 11," owned by her as administratrix of a certain estate. The notice does not describe the property with sufficient certainty. McCarty v. Van Etten, 4 Minn., 461. (2) The notice does not state the amount claimed. Thomas v. Barber, 10 Md., 380; Phillips on Mechanics' Liens, § 21. 2. That the petition for a lien was irrelevant and incompetent as evidence. It is upon its face a petition for a lien upon property of the estate of Dwight T. Parker, deceased; but after the owner's death, a petition cannot be filed to enforce a lien upon his property. Dobbs v. Enearl, 4 Wis., 451. It states that "the real substance of the contract between the original contractors and the owner of the premises is not sufficiently known to him [the petitioner] to describe herein," and that notice in writing has been served "upon the owner of said building and premises." The person here referred to as owner of the building and premises, who contracted for the erection of the house, and upon whom the notice had been served, appears, by the language of the petition, to have been the deceased Dwight T. Parker. The only mention of Mrs. Parker in the petition is in the statement that the petitioner is to receive for his work upon the building "$3,000 to be paid in the manner stated. in contract between Mary E. Parker and Reynolds & Lefeldt." It cannot be inferred from this, either that Mrs. Parker is the owner of the premises, or that her contract with Reynolds & Lefeldt was for the building of the house. The petition is likewise defective for failing to state that at the time notice was given, there was something due or to become due from the owner to the original contractors (Tay. Stats., 1763, § 4, and 1765, § 11); and because it does not sufficiently set forth the contract upon which the claim is founded. Simpson v. Dalrymple, 11 Cush., 308. For the respondent, a brief was filed by Geo. Mills, and the cause was argued orally by J. T. Mills: It is often very difficult for a petitioner to ascertain the |