2 Ga. 257 | Ga. | 1847
By the Court
delivering the opinion.
The contract set out in the plaintiff's declaration in the Court below is to the following effect. The defendant agreed with the plaintiff to gather the peaches then ripening in his orchard, to carry them, to his still, to make them into brandy and return to the plaintiff one third of the brandy distilled from them, in good casks, at his own expense—the defendant, to use the language of the agreement, was “ by no means to neglect or fail to carry away said peaches and to distil them, provided lie run two stills, and to still them if he could do so provided he run hut one.” The action was brought upon this agreement. The pleader set it out as above, averring that plaintiff’s peaches would have made one thousand gallons of brandy, if the defendant had fulfilled his contract, and that his (plaintiff’s) part of the brandy would have been worth to him five hundred dollars, and concluding with a breach in these words, “ and your petitioner avers that said Murphy (the defendant) did not comply with his contract with your petitioner, but wholly refused and neglected to comply in any part or portion of
It is a very serious question whether, so far as the first exception is concerned, this declaration is not good as it stood, without the amendment. It is true, as argued by the learned counsel for the plaintiff in error, that when the obligation on the defendant to perform his contract depends on any event which would not otherwise appear from the declaration to have occurred, an averment of such an event is necessary; and whether the obligation depends upon an event, or upon a preparedness, or an ability to execute the contract, as in this case, perhaps does not vary the rule. 1 Chitty Plead. 228, 229. Yet a very nice, almost impalpable, distinction obtains in the books, between a condition precedent, which qualifies the contract and limits the obligation of a party, and a proviso or condition in the contract, which goes merely in defeasance of it. In the latter instance the proviso or condition need not be noticed by the plaintiff, because it is matter of avoidance which is within the knowledge of the defendant, and may be set up by him in defence. 1 Chitty Plead. 222, 223, 228; 1 Saund. 223, note 2; 1 T. R. 645 ; 12 East, 1; 11 East, 633. It is also a general rule of pleading, that matter which should come more properly from the other side need not be stated. Com. Dig. Pleader, c. 81; 2 Saund. 62 b.; 8 T. R. 167; 2 Wils. 147; 5 T. R. 615; 8 East, 80.
Bacon’s Abridgment lays down the following rule: “ That in all cases where an interest or an estate commences upon condition, be the condition or act to be performed by the plaintiff, defendant, or any other, and be it in the affirmative or negative, there the plaintiff ought to show it in his declaration, and aver the performance of it, for the interest or estate commences in him upon the performance of the condition, nnd not before. But, when the interest or estate passes presently, and vests in the grantee, and is to be defeated by matter ex post fox,to, or condition subsequent to the condition tó be
Does not this declaration show a contract, an undertaking by defendant to do a thing, to wit, distil the plaintiff’s peaches 1 and if the condition is not precedent, but a proviso working only a defeasance, as I believe it is, then is there not a cause of action exhibited,. albeit imperfectly ? Is there not something upon which to amendl It is not too late, in the order of this opinion, to say here, that in almost all the cases where conditions have been brought into discussion before the courts, and determined to be conditions precedent, they have been conditions to be performed by the plaintiff, and not as here, a status, or condition of the defendant, which shall excuse him. After verdict, the law—the courts would be constrained to infer that the jury had no evidence before them to show that the defendant was entitled to be excused on account of the proviso, and that they did have before them proof sufficient to justify a finding for the plaintiff. The verdict finds that there was a breach of the contract legally proven. The defendant further, could be at no loss as to the character of the plaintiff’s demand or charge; he is thoroughly put upon his guard. Nor can it be doubted, that the judgment in this case would be a bar to another action brought against him for the same cause. More then for the sake of giving full effect to the spirit of our statute, than because we believe that at common law the declaration was bad, we affirm the judgment of the Court below, in sustaining the demurrer. A fortiori, we sustain the decision authorizing the plaintiff to amend.
As to the second exception, we find that the breach was
When breaches lie more in the defendant’s than in the plaintiff's knowledge, less particularity is required. 8 T.R. 463 ; 8 East. 80.
A general statement that the defendant has not performed his agreement or promise is bad on demurrer, though aided by verdict. 1 Chitty Plead, t. p. 243; 5 East. 270; 5 B. & C. 284; 1 Salk. 240; 1 Saund. Plead. and Evid. 135. And this is the assignment made in this case. Chitty says, “ the sufficiency of the breach will in general be aided by the verdict, by the common law intendment that it is not to be presumed that either the Judge would direct the jury to give, or that the jury would have given the verdict without sufficient proof of the breach of the contract.” 1 Chitty Plead. t. p. 245.
Our opinion is that the exception was well taken, but that the writ was in this particular also amendable. The judgment of the Court below is affirmed.