Trustees of New Castle Common v. Stevenson

Majority

p. 451

Trustees of New Castle Common v. Jonathan Stevenson.

Headnote

In declaring upon a general covenant, or clause in a written instrument, with, a qualification, or exception occurring in a subsequent and distinct clause, or proviso of the covenant, or instrument, it is not necessary for the plaintiff either to state, or negative the qualification, or exception, in the declaration.

This was an action of covenant on a lease, the covenants of which were, that, during the term, the tenant, the defendant, should keep the buildings, houses, outhouses, and other tenements, and all hedges, fences, gates, &e., in good order and repair, using materials of good quality and fitting therefor; provided, however, that if the acting committee of said trustees shottld at any time, during the term, be of opinion that the roofs of the buildings on the premises could not be further repaired to advantage, and that new roofs would be required thereon, then the same should be done at the proper cost and charge of said trustees. On which two breaches were assigned by thé plaintiffs; first, for not keeping the fences and hedges in repair; and, secondly, for not keeping the buildings, houses, and outhouses in repair on the demised premises. To the first breach the defendant pleaded that the New Castle and Wilmington Railroad Company, under color of the authority of their charter, and with the assent and concurrence of the plaintiffs, had located and constructed their railroad over and through the demised premises, thereby changing, altering, and breaking up the fences and hedges aforesaid, on the lines inclosing the same; and as to the second breach, that he had, during the term, kept the buildings, houses, outhouses, and other tenements on the demised premises, in good order and repair, using materials of good quality and fitting therefor. To these pleas the plaintiff entered a general demurrer.

Rodney, for the defendant,

objected, that the first error in the pleadings occurred in the declaration, because it

p. 452

took no notice of the proviso, or qualification contained in the covenant and lease, in regard to the repairs upon the roofs of the buildings on the premises; hut was upon an absolute and unconditional covenant td repair, without any. qualification whatever, and without negativing the exception in that respect, as it should have'doné, by averring that the committee of trustees were of opinion that the old roofs could be further repaired to advantage, and that new ones were not necessary.

held that no such averment was necessary in the narr; because if the committee of trustees were of a contrary opinion, it was a matter of defence to be alleged on the other side, and not iiecessary to be negatived, or denied in advance by the* plaintiffs in their declaration; for the exception was byway of proviso, or a distinct condition following the covenant to repair, and was not incorporated in it. There were certain well-settled principles of pleading which applied, in such cases; the first of which was, that every written instrument, if not set forth in heec verba, must be stated according to its legal effect and operation, and the perfection of pleading is said to consist in combining brevity with the requisite certainty and precision ; and the second is, that matter which should more properly come from the other side, need not be alleged or denied by way of anticipation. There is also another rule, which distinguishes, in this respect, between an exception, condition, or proviso which qualifies the liability of the party, or exempts him from responsibility altogether, when it occurs in the same general clause of a statute, or in the same general clause of a written instrument, or covenant, and is so blended and identified with it, that it' cannot be separated from it, or read without noting the qualification, or exception* and when it occurs in a subsequent and distinct clause, or proviso of the statute, or instrument. In the former case, the party relying on such general clause, with the exception or qualification so embodied in it, must in pleading state it with the exception, or qualification,

p. 453

and negative, or deny that the opposite party falls within it; hut in the latter ease this is not necessary, for he need not notice the exception, hut may leave it to the other side, if he relies upon it as a defeasance, or a defence to the action, to plead it and show that his case is embraced in the exception. The present case falls within the latter branch of this rule, and the objection of the defendant, therefore, is not well taken.

T. F. Bayard, for plaintiffs.

Rodney, for defendant.