Stewart v. Bedell , 1875 Pa. LEXIS 207 ( 1875 )

Judgment was entered in the Supreme Court, October 25th 1875,

Per Curiam.

The defendant’s covenant not to engage in busi-" ness within prescribed limits, and the covenant, if he should do so, that he would pay $10,000 liquidated damages, are not alternative; the latter being merely the agreed consequence of a breach of the former. If covenants be alternative and either be performed there is no breach. An election is given to the covenantor to perform either. But here a breach of the former covenant is necessary to give effect to the latter. Hence there is no election in such case, except that which arises from a determination to suffer the consequence of a breach. Here them the former covenant is broken, and its breach must be shown to entitle the plaintiff to resort to the secondary covenant to pay the damages. Hence the plea of “ covenants performed” applied only to the breach alleged in the declaration, to wit, of the covenant not to engage in business. Here the affirmative plea is pregnant with a negative, and casts the proof of the breach on the plaintiff. The words absque hoe, when added to the plea of covenants performed, apply to those covenants of the plaintiff which he must prove as a preliminary to a recovery. We discover no error in the record.

Judgment affirmed.