
    Curl & Hardwick v. Mann.
    1. Action of covenant — pleas, 1. performance and 2. an excuse for performance. Held, that by these pleas, def. admitted the execution of the instrument declared on, and that therefore J the cir. ct. very properly excluded it from the jury.
    
      % Def. having pleaded an excuse for not performing his covenant, pltf. may give evidence to show that he had no excuse.
    b( , u case. °” ° 16
    APPEAL from the circuit court of Carroll county,
   Opinion of the court delivered by

Tompkins J.

Hardwick and Curl brought their action of covenant against Mann in the circuit court; judgment being there given against them, they' appeal to this court.

The declaration states that Mann the defendant by his certain obligation in writing, bargained and sold, fora certain consideration therein named to the said Cull and Hardwick, a lot of bacon and lard, and thereby covenanted to and with them, to :deliver to them the said bacon and lard at Cross’s ferry in a good flat boat &c.; before the tenth day of March then next, if the waters, in Grand •River were high enough, to enable them to float the boat down.the stream; and if he should be hindered from delivering said load of bacon &c. by want of water or any other unavoidable accident before the tenth day of April then next, then the said writing obligatory should be void. .And-if said Mann should fail to perform his covenant, he should forfeit to Curl and Hardwick five hundred dollars.

The.plaintiffs aver that the defendant did not deliver &c. — although the water was sufficient. Oyer of the writing declared on was craved and it was set out and found to be executed by Curl .and 'Mann, but not by Hard-wick. The defendant pleaded, 1st, performance of.his covenant. 2nd. That he was prevented from of ' •

°Pimon of the

Action of covenant — pleas, l. f era^™excuse afor preformance.— ”

Held, that by-dmitíedthe exe cutior^of the* ta-strument declared fo1?eanfht1!laht’ieij,e' propeííy ex-eluded it from the jul7-

¡¡¿ ¡¡n Excuse0 for performing covenant, pltf. ™eayeegltvo0 g™~v that he had no ex-

On the trial of the cause the plaintiffs offered in .evidence the writing declared on, which was excluded by the court, the plaintiffs then offered to prove that the-water in Grand River had been sufficient to enable Mann to deliver his load of bacon &c. This evidence was also rejected. These decisions of the court are assigned for

• The questions then to be decided are .1st, did -the. court commit error in excluding from the jury the of writing declared on. 2nd, did the court commit error in exclnding the testimony- of witnesses to prove that the height of the water in Grand River would have permit-ed the defendant to perform his covenant. '

lst. Both the pleas filed by the defendant, one "being a plea of performance, and the other in excuse of perform-anee admitted the execution of the instrument offered-in evidence, and it being a settled rule of law that the plaintiff shall not be required to prove what the defendant" by his plea admits, the court certainly committed no error in excluding from the jury the instrument of writing de-claxed on, and which the defendant had by his pleas admitted to be his act and deed. The admission of such evidence to the jury could serve no other purpose than to perplex and "mislead them.

" 2nd. One of the pleas being an excuse for not performing the contract, the plaintiffs ought to have been permitted to introduce testimonyto prove that the fendant had no excuse. To prove that the waters- > Grand River were sufficiently high to enable the defendant to deliver the boat load of bacon and lard, according to contract, was then to prove that the defendant to have lost his cause; and consequently it was error to exclude such testimony. Because then the court rejected the evidence offered by the plaintiffs to prove the state of the waters of Grand River, its judgment is reversed and the cause remanded for further proceedings in conformity -with this opinion.  