
    Goulding vs. Hewitt.
    In an action upon a covenant by which the defendant agreed not to sell any stoves or castings within certain prescribed limits, reserving however the right to sell castings for the purpose of defraying his ordinary household expenses; held, that he was at liberty to dispose of castings either by sale, exchange or otherwise, provided the gross avails did not exceed the amount of such expenses, and that he was not restricted to sales or exchanges for articles of property for household use, or for money or property to be appropriated to such use.
    A plea of nor. est factum,, in an action of covenant, admits a breach on the part of . the defendant, and devolves on him the onus of showing the contrary at the trial; though, semble, such admission does not in itself entitle the plaintiff to more than nominal damages.
    Covenant,, tried at the St. Lawrence circuit, in July, 1841, before Willard, C. Judge. The action was upon a contract under seal, dated February 22d, 1841, whereby the defendant, among other things, covenanted not to manufacture or sell any stoves or other castings, or be interested «fee. in the business at any time within three years, within ten miles of the village of Potsdam. The damages for each infringement of the covenant that might occur, were liquidated by the agreement at $100. It was, however, provided, that the defendant might have the privilege of selling castings within the said limits, to defray his ordinary household expenses. The declaration contained nine counts, each alleging, as breaches of the covenant, some, twenty separate sales of stoves by the defendant to different persons within ten miles of Potsdam, not made for the purpose of defraying his ordinary household expenses. Plea, non est factum, with notice that the defendant would prove that he had not sold, &c. except to defray his ordinary household expenses. On the trial, after proving the execution of the contract by the defendant, the plaintiff rested, claiming a verdict of $100 for every breach0assigned in the declaration.
    The defendant proposed to .prove the amount of his yearly ordinary household expenses, insisting that he had a right under the contract to sell stoves, or castings within ten miles of Potsdam, to an amount equal to those expenses. The counsel for the plaintiff objected to the introduction of the evidence offered, on the ground that the defendant was limited, by the contract, to a sale or exchange of castings directly for household use or for articles of property therefor, or for money or property to be appropriated to such use. The judge overruled the objection, and the plaintiff excepted. The defendant proved that his ordinary annual household expenses were from six hundred to seven hundred dollars. Jacob Dayton was then sworn as a witness, and testified that in the winter of 1840-1, he was in the employ of the defendant as teamster—that he drew stoves for him from the Lewisburgh furnace, Lewis county—that the prices of the stoves ranged from $18 to $26—• that he had two stoves of the defendant, one of which he was to take at the furnace price—he selected one at $25, and the other was taken by Mr. Lord in Potsdam—witness was en-. gaged in transporting stoves from October 1840, to some time in March, 1841, from the furnace to Potsdam, and thence eastward to Nicholville and Ausable Forks, one about fifteen and the other about sixty miles distant; they were always first brought to Potsdam and deposited there; witness could not tell what number of stoves were brought to Potsdam, nor how many were carried to Nicholville or Ausable Forks, although he transported a considerable share of them. It further appeared by the testimony of the same witness, that two other persons with teams drew stoves for the defendant during the same time and in the same manner.
    The defendant then rested, claiming that the plaintiff was obliged to show, in order to sustain his action under the pleadings and proofs already given, that the defendant had sold stoves within the prescribed limits to a larger amount than his ordinary household expenses, between the time of making the contract and the commencement of the suit. The judge ruled in favor of the defendant, holding that the breaches set out in the declaration were sufficiently-disproved to call for further proof from the plaintiff; to which decision the plaintiff excepted. The plaintiff claimed and asked the judge to decide, that under the breaches assigned in the declaration and admitted by the plea, the burthen of disproving them lay upon the defendant, who was therefore bound to show more clearly than he had done what stoves had been sold by him, and that he had not sold to a greater amount than his ordinary household expenses. The judge refused to decide as requested, and the plaintiff excepted. The plaintiff then proposed to prove, with a view of sustaining his construction of the proviso contained in the agreement, that stoves were peculiarly articles of barter. The defendant objected, and the judge sustained the objection; whereupon the plaintiff again excepted. The plaintiff further-offered to prove that the defendant had, within the specified limits, sold and" exchanged stoves "to purchase and pay for materials and labor for building a store in Potsdam. The defendant objected, and the judge sustained the objection— holding, that the evidence offered was incompetent, unless it should be further shown that such sales and exchanges exceeded in value and amount the ordinary family expenses of the defendant. No further evidence being offered, the judge directed a nonsuit, to which the plaintiff excepted. The plaintiff now moved for a new trial upon a bill of exceptions.
    
      R. H. Gillett, for the plaintiff.
    
      J. A. Spencer, for the defendant.
   By the Court,

Co wen, J.

We think the learned judge was right in his construction of the excepting clause. It left the defendant at liberty to dispose of castings in any way, provided the gross avails did not exceed, his ordinary household expenses during the time in question; no matter Whether by ordinary sale, exchange, or in payment for labor, Under proper issues, therefore, we think the judge would have been right in nonsuiting the plaintiff. Upon the state of the pleadings, however, we are of opinion that the cause should at least have gone to the jury on the question, whether the defendant had made out the case which he proposed to make out by his notice, viz. that he had not exceeded his ordinary household expenses in the sale or other disposition of stoves.

The plea was non est factum, and admitted an excess. It certainly cannot be claimed that any definite amount of excess was admitted. The great number of breaches which the pleader has surmised in his various counts, is but matter of form. He might insert what number he chose. But the averment of breaches is substantial, and the general fact that the covenant was broken, is admitted. That fact is, that the defendant had made a sale or sales at least to a nominal amount beyond what would defray his ordinary household expenses.

By stopping with his plea of non est factum and notice, he assumed the very difficult burthen of establishing a negative to the proposition which his plea admitted. This was not impossible. It is not impossible that he may so exactly measure by his proof the number of stoves brought to or remaining at Potsdam within the short time to which the question relates, and the relative number of them disposed of at Nicholville or the Forks, or elsewhere without the prescribed limits, as to obviate the admission implied by the form of pleading. It is enough for' the present to say, we think he did not do this so clearly that, had the jury found against him on the evidence, we could have granted a new trial. This is saying in other words that the judge should not have nonsuited the plaintiff. We think the onus was not changed by the proof. It did not show how many stoves were brought to Potsdam, by the three teamsters of the defendant, nor the number carried without the prescribed limits and sold. Nor does it, that we see, in any way fix a limit to the number which the defendant had sold at Potsdam. The whole is left to conjecture. The questian on the amount of damages which the plaintiff may be entitled to recover, should a breach be finally established, is not now before us.

New trial granted.  