The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-21

"oIA - uohe IN SKultul ana proper
manner.
OPINION OF THE COURT BY FgEAR. J..
The plaintiff declares upon a con-
tract made January 5, 1898, whereby
he agreed ''in consideration OF the
amount below specified to be paid to
him." to work for the defendant, a
corporation, "as q soap boiier for the
term below set forth, and to give his
whole time, skill and experience to
the business of said company the
defendantl; and to conduct the bust
ness of soap making In skillful and
proper manner and to the satisfac
ton of the said company, and to
properly care for the apparatus and
effects of the company intrusted to
his charge, and to oversee and direct
s the employees who work under him !"
and the defendant sin consideration
aforesaid" agreed to pay plaintiff
1896 &C per month, payable monthly
during the term of this contract"
It was also agreed that, "if the com
pany shall find it necessary for any
cause to shut down its works for any
period over three months, the salary
of the party of the second part the
plaintiff shall be suspended until
work is resumed" and that, "tbis
contract shall remain in force for the
term of three years from the date
hereof, provided said party of the
second part performs said work to
the satisfaction of the company and
as directed by it."
Performance of the contract on
the part of the plaintiff until April
%, 1893, and his readiness and will
ipgness to perform ever since Is
averred in general terms.
The breach assigned is shat the
defendant refuses to allow him so to
do, or to payi him therefor" Id
dannum $4,000.
The defendant demurred gener-
ally, and the case comes to us upon
exceptions to the ruling of the Cir
cult Court, sustaining the demurrer.
In support of the demurrer it is
contended that the averments OF ~
the contract, (2) the performance and
(3) the breach, are insufficient, and
i4) that the contract was not biuding
upon the defendant.
The objection to the statement OF
the contract is based upon the rule
that IL the defendants promise con-
tains an exception ora proviso which
qualities his liability, the declaration
must notice the exception or proviso,
or there will be fatal variance. In
this case the plaintiff, after averring
the making of the contract, copy OF
which is made part of the com
plant, set forth in his own words the
substance of the covenants to work
and to pay, but did not notice the
exception to the defendants liability
in case it should become necessary
for any cause to shut down its works
for any period over three months"
or the proviso that the plaintiff should
perform the work "to the satisfaction
of the Company and as directed by
It." It was unnecessary to repeat
the substance of this exception or
this proviso, or even the covenants
themselves; all were set forth In the
very words of the contract, In the
copy which was made part of the
complaint. Besides, this objection
cannot be raised on demurrer, Tor
there can be no variance between the
declaration and the proofs until the
proofs are in. The copy of the con-
tract which is before the Court is not
a part of the evidence, but a part of
the complaint.
1t is furthur argued that a general
averment of performance is insutfici-
emit This objection cannot be raised
by general demurrer. Proctor v. Sar-
gent, 2 nj & g., 20. But we think the
objection, even if raised by special
demurrer, is not we'll taken. At conn
mon law, it is true, performance OF
covenants and conditions must gem
orally be averred with certainty and
particularly. This rule has been
changed by statute In those of the
United States which have adopted
the Code pleading bliss, Code FL,
Sec. 301), but certain exceptions to
the rule are recognized even at COM
mon law. For instance, a general
mode of pleading is allowed where
great prolixity IS thereby avoided.
In this case, to allege particularly
the place, manner and times OF per-
formance of each of the covenants
and conditions would require great
prolixity. 1t is more usual, perhaps,
even in such cases, to aver perform
ance at least In the words of the con-
tract, if not with greater particular
ity: but where, as In the present
case, the covenants are all In the
affirmative and conjunctive, general
averment Is sufficient without repeat
ing the words of the contract.
The allegation of defendants
breach is insufficient. By the con-
tract, "if the company shall find it
necessary for any cause to shut down
its works for any period over three
months, the salary of the party of
the second part shall be suspended
until the work is resumed" This
constitutes an exception to defend
ants liability, which may, for aught