Webster v. Warren

BY THE COURT. The greatest difficulty arises from the singularity of the plea, which seems almost peculiar to this state. But, construing it according to its own import, and the understanding of the bar, we conceive it amounts-to an agreement, that the defendant may give in evidence any thing which he might plead, or which, in point of law, can protect him against the claim; and, although it would seem just, that the plaintiff should have notice of the matter of the defence, yet, as in similar actions and pleas on policies of insurance, it is not the practice to give such notice, unless called for, we should consider the objection now made on this account, as a surprise on the defendant, wMch might induce the court to set aside the verdict, if against the defendant. With respect to the breach assigned, as to the benefits, it is clear, that the covenants are dependent, and that the plaintiff is not entitled to claim any thing in the way of benefits, without showing performance of every affirmative covenant on his part, and it is competent to the defendant to prove the breach of such of the covenants as are negative. But as to the other parts of the agreement, the covenants are mutual and independent, Webster agreeing to do certain things, and not to do others; and Warren, in consideration of such covenants, agreeing to pay him so much per week. As to those covenants in respect to the weekly pay, the defence set up amounts either to a bar of the plaintiff’s action, or to an offset of damages, sustained by a breach of independent covenants. It is impossible that the first can be supported, where the covenants are independent. If the defendant has • been injured by a breach of the covenants on the part of the plaintiff, he may recover damages in an action against him, but he cannot give such breaches in evidence, either by way of bar. of offset, or in mitigation. Upon this opinion being given, the parties agreed to a compromise, and a juror was withdrawn.