§ 3556. Performance. Where the plaintiff has assigned a particular breach, a general plea of performance, pursuing the words of the contract, is bad. Performance must be set forth with such certainty as to enable the court to judge whether the intent of the covenant has been fulfilled e. g., the defendant should aver, not that he sold, but that he conveyed, setting forth the nature of the conveyance.5 In Pennsylvania, the defendant may plead performance, with leave to give in evidence anything which amounts to a legal defense, and may introduce such evidence without notice of the real defense he intends to set up. Where the terms of an agreement do not limit the time within which it is to be performed, the law implies that it is to be performed immediately, or, at most, within a reasonable time.7

The defendant answers to the complaint, and denies:
That he agreed with the plaintiff as alleged, or at all.

§ 3558. The same denial of plaintiff's performance.

[TITLE.]

Form No. 830.

The defendant answers to the complaint:

That the plaintiff has not performed the conditions of said agreement on his part; but, on the contrary, has wholly omitted [here state breach].

§ 3559. The same- performance by defendant.

[TITLE]

Form No. 831.

The defendant answers to the complaint:

That he made the said [articles] furniture, and on the

4 Bradley v. Osterhoudt, 13 Johns. 404; Beach v. Barrons, 13 Barb. 305.

5 Thomas v. Van Ness, 4 Wend. 549.

6 Webster v. Warren, 2 Wash. C. C. 456; compare Gill v. Patton, 1 Cranch C. C. 143.

7 Brennan v. Ford, 46 Cal. 7. Pleading in action for breach of covenant. See Woolley v. Newcombe, 87 N. Y. 605.

day of

,

18.., delivered the same to

the plaintiff, in every respect as agreed.

3560. The same — excuse for nonperformance.
Form No. 832.

[TITLE.]

The defendant answers to the complaint:

I. That at the time of making said agreement, the plaintiffs agreed with this defendant that, in consideration that he would deliver to them at their store in .. [state what],

they, the said plaintiffs, would pay this defendant [state amount, and when and where to be paid].

II. That the said plaintiffs failed and refused to pay the same on the delivery of said articles at said store.

§ 3561. Master and servant. To an action for breach of an indenture of apprenticeship, the defendant, the apprentice's father, pleaded that the apprentice "was and is prevented by an act of God, to-wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff during all said term; " it was held, on demurrer, a good plea in excuse of performance, without any averment that the plaintiff had notice of the illness before the commencement of the action.1

§ 3561a. Performance prevented by plaintiff. In an action for the breach of a contract to clear certain land of standing timber so as to fit it for seeding, an answer which admits the contract but denies a breach thereof, and shows affirmatively that defendants were proceeding with due performance thereof according to its terms until requested by plaintiffs to desist from so doing, can not be said to be either sham, frivolous, or immaterial.2

§ 3561b. Unavoidable accident. A defense based on unavoidable accident is unavailing where it already appears that the gross carelessness and negligence of the defendant contributed to the injury complained of.3

1 Boast v. Firth, L. R., 4 C. P. 1. Act of God rendering performance impossible, if relied on as a defense, must be pleaded. Pengra v. Wheeler, 24 Oreg. 532; New Haven, etc., Co. v. Quintard, 37 How. Pr. 29; 6 Abb. Pr. (N. S.) 128. Performance prevented by act of God. See Parker v. Macomber, 17 R. I. 674.

2 Brown v. Porter, 7 Wash. St. 327.

3 Greeley v. Irrigating Co. v. House, 14 Col. 549.

The defendant answers to the complaint, and denies:

I. That the plaintiff performed the conditions, or any of the conditions, on his part in the said agreement referred to in the complaint.

II. [Allege negligence in defending the action for which he was sued, and want of notice to the defendant of the pendency of the same.]1

§ 3563. Liability. Where, upon the dissolution of two copartnerships, the defendant executed an agreement to indemnify and keep L. [one of the partners] "harmless from and against all debts due and owing from the late firms; " it was held that under this clause of the agreement the covenantor was not liable until something had been paid by L.2

§ 3564. Negligent defense. Where one holding an indemnity against all actions and all damage by reason of a certain claim is sued thereon, and having a probably ample defense, undertakes to defend it without calling on the obligor in the indemnity, and omits to set up such defense, and by utter neglect fails in the suit, he can not afterwards enforce the indemnity.3

$ 3565. Release. Defendant made a valid agreement with three partners not to do business in a certain place; two of said partners sold out to the third, and left said place; said third resold the business to defendant, and released said agreement; it was held that the other two partners could not sue for a breach, as the agreement was incident only to the business.*

1 As to indemnity by depositor, see Cal. Civil Code, § 1833; by employer, Id., §§ 1969-1971; of trustees, Id., § 2273; of partner, Id., § 2412; and in general, see Id., §§ 2722-2781.

2 In re Negus, 7 Wend. 499: Wright v. Whiting, 40 Barb. 235.

3 Bridgeport Fire & Marine Ins. Co. v. Wilson, 7 Bosw. 427.

4 Gompers v. Rochester, 56 Penn. St. 194.

CHAPTER VI.

ON PROMISE OF MARRIAGE.

§ 3566. Denial of promise.

[TITLE.]

Form No. 834.

The defendant answers to the complaint:

That he never promised to marry the plaintiff.

§ 3567. Denial of plaintiff's readiness and offer to marry. Form No. 835.

[TITLE.]

The defendant answers to the complaint, and denies: That the plaintiff has been ready or willing to marry the defendant, or that she ever did offer to marry him as alleged, or at all.

day of

The defendant answers to the complaint, and denies: That the defendant has refused to marry the plaintiff, but avers that on the 18.., and ever since, he has been ready and willing to marry her, but at the date above mentioned, and at all times since then, the plaintiff has refused to marry this defendant.

§ 3569. That plaintiff was of bad character.

[TITLE.]

Form No. 837.

The defendant answers to the complaint, and alleges:

I. That at the time mentioned as the time of said supposed promise the plaintiff was unchaste.

II. That defendant was ignorant thereof at that time.

III. That upon being informed thereof, he refused to marry the plaintiff.

The defendant answers to the complaint, and alleges: I. That at the time mentioned as the time of said supposed promise, and on the ........ day of

18.., at

the plaintiff, without the connivance of the defendant, had carnal connection with one C. D.

II. That upon being informed thereof, he refused to marry the plaintiff.

§ 3571. Misconduct. A special misconduct on the part of the plaintiff, when relied upon as a defense, must be pleaded.1 Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of chastity.2 But if this defense is not established by proof upon the trial, it should be considered by the jury in aggravation of damages.3 Seduction, if alleged in the complaint, may be shown to enhance damages, but not otherwise.1

§ 3572. Other defenses.

An agreement by a man to marry when a divorce should be decreed between himself and his wife in a suit then pending is contrary to public policy and void.5 A man may show in defense to a suit for breach of promise of marriage that he was afflicted with an incurable disease."

1 Button v. McAuley, 38 Barb. 413.

2 Cal. Civil Code, § 62.

3 Thorn v. Knapp, 42 N. Y. 474; S. C., 1 Am. Rep. 651; see, also, as to this defense, Von Storch v. Griffin, 77 Penn. St. 505. Proof of plaintiff's unchastity is admissible under a general denial. Smith v. Braun, 37 La. Ann. 225.

4 Leavitt v. Cutler, 37 Wis. 46; Cates v. McKinney, 48 Ind. 562; S. C., 17 Am. Rep. 768.

5 Noice v. Brown, 38 N. J. L. 228; 48 Am. Rep. 308.

6 Sprague v. Craig, 51 Ill. 288; Shackleford v. Hamilton, 93 Ky. 80; 40 Am. St. Rep. 166; Gulick v. Gulick, 41 N. J. L. 13. The rescission of the contract is a proper defense to be pleaded to the action. Mabin v. Webster, 129 Ind. 430. And infancy, when pleaded, is a valid defense to the action. Rush v. Wick, 31 Ohio St. 521; 27 Am. Rep. 523.