
    Richmond.
    Chewning & Sands v. Wilkinson.
    March 17, 1898.
    Absent, Cardwell and Buchanan, JJ.
    1. Pieabis g — Covenant—“ Conditions Performed ” — “ Covenants not' Broken” — Performance Excused. — The plea of “covenants not broken” is not a proper plea in an action on an affirmative covenant. In such an action the proper plea is “conditions performed” or “covenants performed”; and the latter plea can only be supported by evidence showing that the defendant has performed his covenant,, and not by evidence which shows that performance was excused by the act of the plaintiff, or anyone else. If such excuse is relied on. it must be specially pleaded.
    Error .to a judgment of the Circuit Court of King William, county, rendered April 9, 1896, in an action of covenant wherein: the plaintiffs in error were the plaintiffs, and the defendant in. error was the defendant.
    
      Reversed.
    
    The opinion states the case.
    
      H. R. Pollard, for the plaintiffs in error.
    
      H. I. Lewis, for the defendant in error.
   Harrison, J.,

delivered the opinion of the court.

This action of covenant was brought upon the following paper r

“Whereas, H. R. Pollard, substituted trustee for P. H~ Adams, with the consent of A. J. Ohewning and O. R. Sands has paid me the sum of eight hundred dollars ($800), which sum has been applied as a credit on my claim against P. H. Adams. (I holding a second lien on the property sold by Chewning & ■Sands June 13th, 1891) and which amount was applied towards the payment of several past due notes held by the Planters National Bank, Richmond, Virginia, and together with the past due interest and fees amounting to the sum of ($5,062.81) this ■amount of eight hundred dollars was deducted’ and allowed me with the consent of the above named first lien-holders, and at the suggestion of P. H. Adams, when it should have been applied towards the payment of the debt of the first lien-holders, who were A. J. Chewning and O. R. Sands.

“Now, therefore, I hereby bind myself, my heirs and assigns, to pay or make good any balance not exceeding the sum of eight hundred dollars ($800) that may be due the said Chewning & Sands as the first lien creditors of P. H. Adams, as aforesaid, after the exhaustion of all the securities and the sale of all the property of P. H. Adams, which the said Chewning & Sands may have as security for the payment of said debt. I hereby waive the benefit of my homestead exemption as to this obligation. Witness my hand and seal this first day of July, 1891.

“E. WILKINSON, (Seal.)”

The declaration avers that a balance of $1,286.06 is due the plaintiffs, as the first lien creditors of P. H. Adams, after the exhaustion of all the securities, and the sale of all the property of P. H. Adams which they have as security for the payment of ■their debt.

The defendant relied upon the pleas of “conditions per■formed,” and “covenants not broken.” The whole of the evidence of the defendant was directed to showing that before the paper sued on was executed, the plaintiffs had received from the .sale of the Adams property $1,000, which had not been credited upon their prior lien, but had been improperly applied to another debt; that if the $1,000 had been credited, as it should have been, upon tlie debt of tbe plaintiffs secured in tbe deed of trust, tbe defendant would owe nothing upon tbe undertaking sued on.

Vo jury was demanded, and all questions of law and fact Avere submitted to tbe court, upon consideration whereof, tbe court held that tbe defendant was entitled to tbe credit claimed, ascertained that- tbe true amount due tbe plaintiffs was $92.54, and gave judgment accordingly. Thereupon tbe plaintiffs moved the court to set aside its judgment, and instead thereof to enter judgment in their favor for $800 and interest, upon tbe ground that, under tbe pleadings in the case, tbe defendant could not show that be was entitled to tbe credit allowed by tbe court, and that tbe eAÚdence did not show that tbe defendant was entitled to any such credit.

This motion was overruled, a bill of exceptions taken, and tbe case brought to this court.

Tbe covenant sued on is affirmative, and therefore tbe plea of “conditions performed” was proper; there being m> negative covenant in the obligation, tbe plea of “covenants not broken” Avas badly pleaded. The plea of “covenants performed” can only be supported by evidence which shows that tbe defendant has performed bis covenant, and not by eAÚdence showing that bis own performance was excused by tbe act of tbe plaintiff or any other. 1 Barton’s Law Practice, sec. 125; Fairfax v. Lewis, 2 Rand. 20; Scraggs v. Hill, 37 W. Va. 706.

Tbe evidence does not sustain tbe plea of “covenants performed.” The defendant should have filed a special plea setting forth tbe fact relied on, that tbe plaintiffs bad failed to credit their debt Avith $1,000 properly applicable thereto, which credit would have left nothing due from the defendant, as an excuse for tbe non-performance of bis covenant. 1 Barton’s Law Practice, sec. 125.

Our conclusion is, therefore, that tbe judgment of tbe Circuit Court must be set aside, and a new trial awarded tbe plaintiffs, with leave to tbe defendant to file such pleas as be may be advised Avill put in issue tbe defence upon which be relies.

Reversed.  