#### *Peebles vs. Porter*& *Co.*

Covenant.

Case 130,

Error to the Mason Circuit; W. P. JRofer, Judge.

*Demurrer to evidence. Pleading. Leave to give special matter in evidence. Conditions precedent. Practice. .Mandates.*

Pa,rtÍRS to t!le a° l0n'

Declaration,

Plea, and , matter maybe given in evidencetorney.

November 27.

Judge Mills

delivered the opinion of the court.

Norman Porter & Company, a firm of Philadelphia, brought their writ, in covenant, against Tbeophilus Page & Co. composed of Theophilus Page and Robert Peebles, a copartnership of Maysville in this state. The writ was executed on Peebles only, and returned “no inhabitant” as to Page, by which it abated.

The plaintiffs declared on a covenant, the stipulalations of which, in substance, were, that they, the plaintiffs, should transport and deliver, by a specified time, eighteen boxes of tin, at the store of Messrs. January, Winans and January, commission merchants in Maysville, and within *three*months thereafter,-eighteen boxes more; at *the*expiration of the next three months, eighteen boxes more, and at the expiration of three move months, the last and fourth quantity of eighteen boxes; and that on the delivery of each of these parcels, or number of eighteen boxes each, Page & Co. stipulated to execute their note of hand, payable at the branch bank of Washington, Kentucky, within five months from the date, for four hundred and sixty-eight dollars, the price of each parcel of boxes. They then averred the der livery of each parcel of boxes, at the place and times specified, in as many several averments, and assigned breaches in the defendants’ not executing their notes at each time, as stipulated.

The defendant, Peebles, by his plea, which the clerk says *was ordered to be filed*(instead of simply noting the fact that it was filed, which -is the only pro per entry) alleged the performance of the covenants in full, and concluded to the country; to which the plaintiffs filed their joinder, and then annexed this agreement or note, signed by the plaintiff’s counsel:

*610Demurrer of defendant to the evidence.

• Conditional verdict.

Judgment for ■ plaintiff.

Party holding the affirmative cannot •demur to his adversary’s evidence.

T ,, issue-of covenants per“thes echü maUer which *could*belegaily plead-given-in evi3ence,”.puts the plaintiff of the ner-°f formanceofa condition precedent—

—Such leave has the effect *611of all negative and affirmative pleas, except those requiring affidavits.

> *610££The special matter which could be legally specially pleaded, may be given in evidence.”

At tlie final trial, which is the only part of the record which we need to notice, the plaintiffs gave in evidence the covenant declared on, precisely corresponding with that recited in the declaration, and then closed their proof.

Tiie defendant demurred to the evidence, and the plaintiffs joined in demurrer.

The jury found a conditional verdict, of-the price of the whole quantity-of tin in damages, if the law on the demurrer to evidence was for the plaintiff, and for the defendant if the law was for him.

The court below rendered judgment for the plaintiffs, to reverse which this writ of error is prosecuted.

If the demurrer to evidence is to be considered With regard to the issue made up in the cause by the *plea*alone, then the judgment of the court is right; because by'that'issue the defendant took the affirmative, and was bound to adduce all the evidence on his part, when he adduced none. Besides, a demurrer to evidence on the part of him who holds the affirmative of the issue, is absurd in itself, and Ought not to be allowed.

The question must therefore rest on the permission to give any special matter m evidence which might have been pleaded in bar. Tó give this a-greement *or*permission no effect, would be disregarding the intention-of the parties and *overturning*-the'established understanding of a practice well known,- oftentimes subserving the purposes of convenience, and always the ease or indolence of connsel. The question then remains, what is the effect to be given to it? Ought it to *be*construed to include affirmative pleas only, or both affirmative and negative. If affirmative pleas only are included, then the demurrer was improper and the judgment right, gut if negative pleas also are embraced, then very different consequences follow. In the covenant there was an undoubted precedent condition to be per*611formed on the part of1 the plaintiffs, to-wit: the previous delivery of the tin at the time and place, and that precedent condition occurred; and was to be performed by the delivery of each parcel of boxes, before the defendant was bound to do any thing on his part. The proof of the performance of these precedent conditions, the defendant demanded under the agreement, and the defendants refused to produce such proof, and hence the demurrer. We have no doubt that negative pleas were and are included in this permission or agreement, and that such is the usual understanding of the practice, and is justified by the meaning of the terms employed. We would not be understood as extending such permission to such negative pleas as *non est*factum, or impeaching the consideration which particular statutes, or the rules of practice required to be verified, by affidavit, before they are filed; but all other neg-ative pleas are embraced. The precedent conditions were, and must necessarily be, averred, on part-of the plaintiff, or no cause of action is shewn. A traverse of these averments are, and must be, made by a special, legal plea; and the defendant clid give it in evidence as special matter, on. the face of the plaintiff’s own evidence; and the want of it was-sufficient evidence on part of the defendant. On the face of the record and the plaintiff’s evidence, and the issues made by the agreement of the parties; the plaintiffs failed to shew any good cause of ac-. tion, and the court below erred in rendering a judgment for the plaintiffs on the conditional verdict, when a judgment for the defendant was the only le-gal inference from the whole record, which contained in it all legal negative pleas on the part of the-defendant, those alone which require an oath, or-those of a dilatory character excepted.

Mandate for judgment against the party who demurred to the evidence.

*Crittenden*and *Brown*for plaintiff; *Chinn*for defondants.

Judgment reversed with costs, and cause remanded, with directions to enter judgment for defendant -on the verdict.