Holliday v. Cooper , 9 Miss. 633 ( 1844 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

Cooper, the defendant in error, instituted this suit on a bond made by the plaintiffs in error, in the penalty of twelve hundred dollars, conditioned for the delivery of three negroes at a time and place therein specified. In the declaration the nondelivery of the negroes at the time and place specified is assigned as a breach of the condition. The defendants’ craved oyer and pleaded general performance, on which the plaintiff took issue. On the trial the defendants’ counsel asked the court to instruct the jirry, “ that unless the plaintiff had proved that the conditions of the bond declared on, were broken by the defendants, the plaintiff could not recover; and that the burthen of proving the breaches of the condition alledged in the plaintiff’s declaration, is thrown upon the plaintiff.” This charge was refused, and such refusal is assigned as prror, and constitutes the only question which the case presents.

This is not a mere money bond, and the rule applicable to such bonds does not prevail in this case. The performance of a covenant or condition tvas secured by a penalty. The plaintiff seeks to recover damages for'the, breach of the condition, which breach he assigned in his declaration. His right of action depends upon the breach of the condition by the failure to deliver the negroes at the time and place agreed on; and having predicated his right to recover on the breach of the condition, he must in this, as in other cases, prove a cause of action. He chose to assign a breach in his declaration, and the defendants pleaded general performance, which was accepted as a good plea. The issue imposed on the plaintiff the necessity of proving the breach as laid. When the defendant pleads special performance, then the burden of-proof falls upon him. The case stands in the same attitude that it would have stood if the defendant had pleaded general performance, and the plaintiff had assigned breaches in his replication. The issue in either case is on the plea of performance-, and the rule of law is as above stated; the plaintiff must prove the breach. 1 Saunders on Pleading and Evidence, 322. The court therefore erred in refusing to give the charge. The proof introduced by the plaintiff did not tend in the slightest degree to prove the breach, and the judgment must therefore be reversed and the cause remanded.