Perkins v. Rogers

Church, Ch. J. This is an action of covenant broken. The plaintiff in his declaration sets out the terms of the covenants on the defendants’ part, and then proceeds to allege [85] a breach of them; but without averring the performance of a condition precedent, by himself, connected with the defendants' covenant to pay seventy-five dollars of the rent in betterments and improvements on the farm, such as said Perkins, the plaintiff, should direct. The plaintiff, in fact, did not complain of any other breach of covenant than this. The defendants pleaded performance in bar of the action, and averred specially a performance on their part, of each of the covenants of the lease, as alleged or described in the declaration. Upon this plea in bar the plaintiff took issue, and denied the performance as pleaded, and put himself on the country. The plaintiff, on the trial, disclaimed any right to recover, except the seventy-five dollars which was agreed to be paid in betterments and improvements. On the trial, it seems, that the plaintiff opened, by introducing some evidence tending to show that the defendants had made no betterments at all, and then rested, without attempting to prove, that any direction had been given or request made by him that the defendants should make them. The defendants thereupon objected, that the evidence thus introduced was not sufficient, and would not, without proof of such direction or request, warrant a verdict against them; and so the court decided, and directed a verdict for the defendants. The mistake in these proceedings, seems to have arisen from the fact, that the plaintiff undertook, without objection, to go into proof of his declaration, as if the general issue had been pleaded. This was wrong. The defendants, having pleaded performance specially in bar of the action, as their only plea, assumed, upon the record, the burden of proof. Under the issue thus joined, the question was, not whether the plaintiff had disclosed in his declaration a good cause of action, or was bound to prove one; but it was, whether the facts averred by the defendants, in their plea, were true. These, and nothing else, had been affirmed and denied, by the issue. The defendants, by not demurring to that part of the declaration to which they excepted, had, in that stage of the cause, waived objections to it, and, by a plea of performance in bar, had confessed the facts alleged in the declaration. Instead, therefore, of objecting that the plaintiff had not [86] proved enough, it was the duty of the defendants to have assumed the onus probandi, and have proved their own plea. The propriety of this course of proceeding was sanctioned, by this court, in the case of Scott v. Hull, 8 Conn. R. 207., and in conformity with the well known rules of pleading, in which it was said, “In covenant there is no general issue; and the defendant, by his plea of performance, assumed the burden of proof, and equally as on a plea of full payment, his was the right of opening and closing the argument." 2 Greenl. Ev. 247. Under a rule of practice adopted by the judges in England, if the object of the suit is, to recover unliquidated damages, so that it becomes necessary for the plaintiff to go into proof of them, he is permitted to begin; but we have not yet adopted any such rule, and to do so in this case, would in effect overrule the point decided in the case of Scott v. Hull. But under such a rule, it would not follow, that the onus probandi of the issue, would be changed. Nor would it make any difference, as we can see, that the plaintiff’s declaration was defective in not averring a direction or a request by him to the defendants, regarding the betterments to be made upon the leased premises. The sufficiency of the pleadings was not then in issue. The defendants, if they pleased, could have demurred to this part of the declaration, and have pleaded performance of the other independent covenants declared upon; or, if the defect was not cured by verdict, they could have arrested a judgment for the plaintiff, to be rendered upon this breach of the covenants. 1 Chitt. Pl. 643. The court are of opinion, that there has been a mistrial of the cause, and advise that a new trial be granted. In this opinion the other Judges concurred, except Waite, J., who, for some reason not known to the reporter, declined judging. New trial to be granted.