stating the case), delivered the opinion of the court.
Thе sole question to be determined here is, did the circuit court err in its judgment overruling the plaintiff’s demurrer to the defendant’s said special plea ? In order to a proper solution of this question, it becomes necessаry to enquire into the sufficiency of the plea which was demurred to.
A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without showing specifically the nature of the objeсtion; and such demurrer is sufficient when the objection is on matter of substance. 1 Bouv. L. D. 458 ; Steph. Plead. 159; 1 Chitty Plead. 639. Such is the long established and universally recognized rule; and it is the rule expressly prescribed by our statute, (§ 31, ch. 167, Code 1873,) which declares that “ the form of a demurrer or joinder shall be: ‘ The defandant (or plaintiff) says that the declaration (or plea, etc.) is not (or is) sufficient in law.”’
The effect of a demurrer is to admit the facts which are well рleaded. Commercial Bank v. Buckner,
Now, in the light of these well established principles, the sufficiency of the defendant’s said special plea must be tested. The gravamen of - the plea wаs the alleged breach of the contract by the plaintiff in failing to deliver promptly to the railroad company the ten tons of fertilizer, the consideration of the note sued on, to be transported to the defendant on or before the 22d day of September, 1880, according to his agreement and undertaking, such prompt delivery being of the substance and essence of the agreement, by reason of which failure, it is allegеd, the defendant was prevented from receiving and using said fertilizer in seeding his crop of wheat in the fall of 1880, the purpose for which it was sold and bought, in due and proper time, whereby the defendant’s said crop was greаtly diminished, and damage was thereby sustained by him in the sum of $500, which sum exceeds the amount of the note sued on, &c.
Conceding as true the averment in the plea that the plaintiff contracted to deliver said quantity of said fertilizer to the railroad company in Baltimore, for transportation to the defendant, on or before the 22d day of September, 1880, this, without more, and in the absence of anything amounting to a waiver on the part of the defendаnt of his right to have of the plaintiff a strict compliance with the terms of the contract, or else to be absolved from the obligation thereof, would undoubtedly present a case in which prompt delivery was a material feature, and in which the time of delivery was of the substance and essence of the contract, because expressly stipulated for by the con • tracting parties. But such is not the whole case presented by the plea; for while it is averred therein that said fertilizer was sold and bought to be used in seeding the
Surely it cannot be said that these facts are well or suf • ficiently pleaded; for upon their face they are wholly insufficient for the purpose for which thеy were pleaded. In other words, and taken all together, the defendant, by his plea, virtually admitted that though he once had a com píete defence, he had waived it by accepting from the plaintiff a substituted рerformance, and by then, after the alleged breach, executing his note—-the note sued on—for the said ten tons of fertilizer.
The stipulation in the original contract of sale and purchase, for performance by the plaintiff within the time specified, was in the nature of a condition precedent, and was made for the benefit and protection of the purchaser, the defendant in error here. He had the right to have preformance on the part of the seller according to the very terms of the contract. “The leading principle is that each and every stipulation which enters into the discription of that which is to be donе or rendered, is equally material with every other, as tending to identify the subject-matter; and if any particular remains unfulfilled the
Such, according to the case made by the рlea, were the legal protections thrown around the defendant purchaser at the time of the alleged breach of the original contract by the seller, the plaintiff in error herej but instead of standing firmly on his ample legal defence, the defendant in error waived it by accepting a substituted performance and by his subsequent promise, the note sued on; and the suit was brought, and necessarily so, not on the original executory сontract, but on the subsequent promise—the executed contract.
No authority is needed, says Mr. Benjamin, for the proposition that the party in whose favor the condition has been imposed may expressly waivе it. Benj. on Wales, § 566. Hence it is a recognized principle that every one may waive a right intended for his own benefit, if it can be relinquished without detriment to the community at large.
Hare says there are two grounds on which a contract which failed in the first instance, or became invalid subsequently, may be confirmed by a promise. One of these is waiver, the other ratification. Ratification is an adoption of a contract made on our behalf by some оne whom we did not authorize, which relates back to the execution of the contract and renders it obligatory from the outset. Waiver is a renunciation of some rule which invalidates the contract, but which, having beеn introduced for the benefit of the contracting party, may be dispensed with at his pleasure. Hare on Con. 272. Hence, when a party has stipulated for a benefit, the enforcement or relinquishment of which can affect him only, and is in no way prejudicial to the community at large, he may, if the other party is in default, by a subsequent promise waive a defence which would otherwise be valid.
In the case here, the defendant in error, by his own shоwing, after the alleged breach of the original agreement by the plaintiff in error, by accepting a substituted performance and by his subsequent promise—the note sued on— waived the protection given by the law, relinquishеd his right to rely upon the rule provided for his protection, and consequently stands precluded from his otherwise valid defence thereunder. Looking then, in the light of these well-settled principles, to the case made by thе defendant’s special plea, we fail to discover any legal ground upon which the judgment of the court below can be sustained. The plea was clearly insufficient and demurrable, and instead
The plea was open to other objections, such as vagueness and uncertainty, but in the view already expressed thеse need not be noticed. It is, however, proper to add that the section under which the plea was offered requires every such plea to be verified by affidavit. No affidavit, so far as shown by the record, aсcompanied the plea. This alone made the plea inadmissible; but the plea was, for the reasons first stated, wholly insufficient and could not have been cured by the required affidavit.
The judgment of the circuit court must bе reversed and annulled. And under the authority of Creel v. Brown, 1 Rob. R. 265; Strange v. Floyd,
Judgment reversed.