delivered the opinion of the court.
This is an appeal from a decree enjoining the appellants from delivering sugar cane grown on the haciendas Floren- ■ tina and Estero to the'Central Eureka for the term of'five’ crops, beginning with the crop of the year 1906-7, or so' long within' that term as the appellee is ready to grind and pay for the same; and also from ‘selling, donating, renting or mortgaging said haciendas’ withоut- stipulating for the' carrying out of a contract made with the appellee. The"con-- ■ tract referred to bound the аppellants to have the cane grown on the two' haciendas ground, at the sugar factory of the ap-pelleе for the tenn just stated, at a certain price, with mutual agreements not necessary to set forth, but, so far as appeаrs, fair and made upon equal terms. It was subject to a proviso, however, that if on January 15, 1908, the projected Eureka Central should have been erected • or should be in ■ course, of. construction, the appellants might cancel the contract, giving notice on October 1, 1907. ' The notice was given, but the appellee contended that the Eureka Central referrеd to was abandoned and that the Central relied upon as the ground for.the notice was one got up by the appellants and named Eureka with a view to getting out of their contract with the appellee.'
The findings of- fact are not entirely satisfаctory upon the point in issue. They set out evidence and avoid a conclusion more definite than that which we shall state. It appears, however, that for some years one Swift had been negotiating for the construction of a Central Eureka,-and was continuing his efforts on' December 10, 1906, when the contract was made. But in October 1906, Javierre had telegraphed to him thаt negotiations with him were at an end, and there was evidence that Javierre and others had met and made an agreement on October 20 to form a corporation to set up the ‘said.Central,’ to be Galled the Central Eureka, ‘it being almost sure’ thаt Swift had failed. The parties were to sell their cane to this *507 Central for ten years. The’ coiirt studiously avoids-finding that this agreement .was made, but does find that if Jávierre • signed it he did not consider himself bouhd by it,- and, as has been seen, -the’ contract with the appelleе was of-later date. The'court also.finds that it was not generally known that the planters had held the alleged meeting or werе contemplating the erection of the Central, and, after stating other details, finds, that the appellants have not .prоved,, by a preponderance of-evidence,, that the eon tract'-referred to the Central Eureka started by .them, оf that the Central Eureka- mentioned was other than the one projected, by Swift. • It. ruled that, the burden of proof was .on the appellants, and thereupon ' made the decree.
There is some preliminary argument that the finding concerning'the continuаnce of .Swift’s efforts is not warranted by the pleadings. If,-this were true, no objection seems to have been made in the court below, where no doubt an amendment would have been allowed if necessary. -But it is a mistake. The bill merely alleges that Swift’s arrangеment failed 'during the.latter .part’ of 1906, and qualifies even this by the further allegation that in the beginning of December Javierre ■ stated to the officers of the complainant (appellee) that he. was still bound to Swift, but-that the thing had failed, and that'he was disposеd to make a contract with them if he .could have a clause providing- for the case of Swift’s súccess. The only real questions concern the ruling on the burden of proof and the propriety of the relief in such a .case as this.
As to the burden of рroof, if that really in any wáy determined the result^ the ruling was correct. The appellants-were seéking to escape from the contract made by them on the ■ ground-of a condition subsequent embodied in a proviso. It was for them to show that the. facts of the condition had come to pass. It is said that the bill, alleges affirmatively a con-, spiracy to evade the undertaking, but that is merely by way of replication to the answer setting up the condition, and is nothing but a specific mode of denying that the condition had
*508
been fulfilled. An allegation of fact that is material only as an indirect negative of something to be proved by the other party does not shift the burden of proof.
Starratt
v.
Mullen,
148 Massachusetts, 570. So there is nothing but. the general question to be considered and that is answered by the statement of it and by repeated decisions of' this court. When a proviso like this carves an exceрtion out of the body of a statute or contract those who set up such exception must prove it.
Schlemmer
v.
Buffalo, Rochester & Pittsburg Ry. Co.,
The doubt as to the relief granted below is more seriоus and in the-opinion of the majority of the court must prevail. According to that opinion a suit for damages would have given adequate relief and therefore the appellee should have been confined to its remedy at law. Again, the cоurt would not undertake to decree specific performance and to.require and to supervise the raising of the crop and the grinding of the sugar for even the now remaining period of the decree. There is a certain anomaly in granting, the half way relief of an injunction against disposing of the crops elsewhere when the coiirt is not prepared to- enforce the performance to accomplish which indirectly is the only object of the negative decree. Therе is too a want of mutuality in the remedy, whatever that'objection may amount to, as it is hard to see how an injunction could, have been granted against the ap-pellee had the case been reversed.
Rutland Marble Co.
v.
Ripley,
Decree reversed.