#### Enoch Morgan's Sons' Company, Appellant, *against*George Waldo Smith *et al.,*Respondents.

(Decided December 2d, 1889.)

In an action for the price of goods sold, defendants set up by counterclaim a demand for a bonus or premium promised by plaintiff in ease defendants’ sales of the goods exceeded their sales for the previous year. Plaintiff, while admitting the alleged increase of sales, claimed that it was effected by means which, by the terms of the contract between the parties, operated as a forfeiture of any claim to the bonus. *Held,*that the burden of proof of specific violations of the contract was on plaintiff, and defendants could recover on proof of a general nature that they had performed their contract.

Appeal from a judgment of this court entered on the verdict of a jury, and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*William D.*Gruthrie, for appellant.

*Seaman &*Conger, for respondents.

*356Van Hoesen, J.

I think that a careful reading of the contract must dispel all doubt as to the burden of proof. The defendants pleaded a counterclaim in an action brought by the plaintiffs to recover the reasonable value of a quantity of sapolio sold and delivered. The counterclaim set up by the defendants was a demand for a bonus or premium that the plaintiffs had promised to allow them in case their sales of sapolio for the year 1887 should exceed their sales for the year 1886. The plaintiffs contended that the defendants had no right to the bonus, because, although their sales for 1887 were in excess of those for 1886, the increase in such sales was effected by means which, by the terms of the contract between the parties, operated as a "fofféiture of any claim to the bonus.

Upon this statement of the case, it is evident that the defendants were not bound to prove, in the first instance, that the plaintiffs had no defense to their counterclaim. It is said that a compliance by the defendants with all the terms and provisions of the contract respecting the bonus, was a condition precedent to their right to recover. Undoubtedly, the defendants were under ah obligation to perform every part of the agreement, but it does not follow from a concession of the truth of that proposition that they were bound to prove, as part of their case in chief, the details of every sale of sapolio that had been made in 1887, and that no one of those sales had been promoted by the use of any of those inducements that the contract prohibited. If there was any good reason for not paying the bonus, it was an answer to the counterclaim, and the proof of that answer devolved upon the plaintiffs. The letters that formed the contract prove this beyond a reasonable doubt. The proposition of the plaintiffs, which became the contract, was substantially this:

“ In order more fully to interest you, and encourage a larger sale, we will pay you, in addition to present discounts, one dollar for each half-gross case, and fifty cents for each quarter-gross case you may purchase during the year 1887, in excess of the 890 half-gross cases you purchased in 1886, *357provided you adhere to the following terms: (1st). You must make every reasonable exertion to increase the sale of sapolio, and order lots of not less than 40 cases of one half-gross cases; (2nd). You must not sell half-gross cases at less than $4.50 per case, nor quarter-gross cases for less than $2.25 per case; (3rd). You must not give a longer credit, or a larger discount for cash, than you allow on other goods; (4th). If in a single instance you violate, either in letter or in spirit, any one of the foregoing stipulations, you shall forfeit and relinquish your right to any bonus whatever.” To these terms the defendants assented.

The defendants’ sales of sapolio in 1887 were much larger than they had been in 1886, and they claimed the promised bonus. The plaintiffs answered that the bonus was forfeited because the defendants had sold sapolio for less than the prices nominated in the contract. If this were so, the .defense to the counterclaim was perfect,' but it was for the plaintiffs to prove it, and not for the defendants to disprove it in presenting their ' case in chief. Proof of a general nature, such as the defendants furnished, that they had .performed the contract, was all that was, in the first.instance, required of them. The agreement was, *not*to do a particular thing, and only slight evidence of compliance was required *(Colder*v. Rutherford, 3 Brod. & Bing. 302). The substantive fact to be made out was that the defendants had forfeited their right to the bonus by violating the terms of the sale, and it was for the plaintiffs who alleged the forfeiture to prove it *(Colder*v. Rutherford, 3 Brod. & Bing. 302; *Seward*v. Leggett, 7 Carr. & P. 613).

I think that Judge Daly properly decided the question as to the burden of proof, and that the judgment should be affirmed.

Bookstaver, J., concurred.

Judgment affirmed.