La Point v. Cady

Htibbell, J. The plaintiff’s declaration sets out several covenants in the defendant’s lease, including the following: “Also the use, during the continuance of the lease, in the said room first named, of so much water-power, to be delivered in said first room, as should be necessary and proper for the purpose of enabling the plaintiff to carry on the business of manufacturing sash, doors and blinds, and to propel all machinery proper and necessary to be used in and about the business aforesaid, to be used, nevertheless, but for ten hours per day for each and every day during the term aforesaid, according to the tenor and efiect of said lease ; which said water-power the said defendant covenanted to furnish to the said plaintiff for the purpose aforesaid, by him to be used but ten hours per day, for each and every day of said lease, subject only to the interruptions provided for in the lease of the Milwaukee and Rock river canal company to the said defendant, and to temporary inten'uption from unavoidable accidents.” [521] And, in setting forth the breaches, the plaintiff’s declarar tion contains the folio whig averment: “He was deprived of the use of water-power sufficient to propel his machinery, ten hours per day, as aforesaid, and enable him to cany on his said business; and that, too, without any hindrance or interruption from the said canal company, or from said accidents, hut solely from the acts of said defendant.” No part of the canal company’s lease was set forth in the declaration. On the trial of the cause the plaintiff offered evidence to show that the deprivation of water-power was not caused by “interruptions” provided for in the canal company’s lease, and also offered in evidence the lease itself, for the purpose of showing what those “interruptions” were. The lease was ruled out by the circuit court on the ground that the declar ration contained no allegation authorizing its admission. The court also instructed the jury that it “ was necessary for the plaintiff, before he could show'that he had been deprived of the water-power which the defendant had covenanted to give him, to show precisely and clearly what amount of waterpower he was entitled to, and that he could never do without introducing the canal company’s lease, and showing what interruptions it provides for on this point.” And further, that the plaintiff’s declaration, in that respect, “ was fatally defective, and he could not recover in that suit.” The question now is, whether the ruling and instructions of the circuit court were erroneous. Much was said, in the argument, on the subject of dependent and independent covenants, and the rules of pleading applicable thereto ; but I have been unable to discover any point which raises such a discussion, and I am not inclined to differ with the learned counsel, or his authorities; on that branch of legal science. The difference between us arises upon the construction of the clause in the plaintiff’s lease which refers to the lease of the canal company, and the question is, in technical language, whether that clause constitutes an exception or a proviso. Tn [522] the court below I held it to be the former, that is, I held it to be a direct and positive qualification or limitation of the covenant to supply water-power. If this was the proper construction, it was necessary for the plaintiff to state the matter which constituted the qualification, and to prove it as alleged. In other words, he must set forth so much of the canal company’s lease as was necessary to show the nature and extent of the “ interruptions provided for ” therein, and must introduce the lease in evidence on the trial. 1 Saund. 293 ; 11 East, 633 ; 4 Camp. 21; 1 Term, 638. If, on the other hand, this clause in the covenant 'constituted a proviso, and not an exception, it was not necessary for the plaintiff to set out either the clause in question or the lease to which it referred. But the defendant would be compelled to raise the matter by plea or notice, if he deemed it material to his defense. Such is the rule of authority upon this subject. ■ 1 Lev. 88 ; Cro. Jac. 537 ; 1 Saund. 233, note c. It is not necessary, nor would it perhaps be respectful to my associates on the bench for me -here to indulge in a discussion of the distinction between an “exception” and a “ proviso.” Much learning has been displayed hi this case and elsewhere without disclosing to my mind any very clear, definite or practical line of demarcation. The very learned Mr. Saunders has given perhaps,' as satisfactory a definition of the terms as can be found. “ There is,” says he, “ some distinction between a proviso and an exception. A. proviso is properly the statement of something extrinsic of the subject-matter of the covenant, which shall go in discharge of that covenant by way of defeasance ; an exception is the taldng out of a covenant some part of the subject-matter of it.” 1 Saund. PL & Ev. 393.) But whatever doubts or difficulties environ the distinction itself, when it is once ascertained, and the doubtful clause in a covenant has been baptized with a name, the rules of pleading applicable thereto are readily determined. If it be [523] resolved into a proviso, the burden of proof, as we have seen, changes from the plaintiff to the defendant. In the present instance, a majority of the court hold that the clause in question is a proviso, and they therefore hold that the plaintiff unnecessarily set forth this clause in his declaration, and unnecessarily added the averment that he was deprived of the use of the water-power “ without any hindrance or interruption from the said canal company, or from said accidents, but solely from the acts of said defendant.” They further hold that these parts of the declaration may be treated as mere surplusage, and that it was not necessary for the plaintiff to sustain them by proof, but that it was sufficient for him to state the covenant to supply the water-power in the place mentioned, for the time mentioned, and then to allege the breach. In this view of the matter, the rejection of the canal company’s lease, when offered in evidence, becomes immaterial ; but the instructions of the court to the jury were erroneous. Deeming it far more important to settle a rule of practice than to establish an opinion, I cheerfully yield to the authority of my brethren. Judgment reversed, with costs.