Where a proviso carves an exception, dependent on a condition
subsequent, out of the body of a statute or contract, the party
setting up the exception must prove, and has the burden, that the
condition subsequent has actually come to pass.
A contract for deliveries for a term of years, of sugar,
terminable meanwhile only in case a specified new Central was
built, could not, in this case, be terminated unless the particular
Central contemplated was built; it was not enough that a Central
called by the same name had been built.
Damages in a suit at law for failure to comply with the term of
a contract for delivery of crop is an adequate remedy, and specific
performance and an injunction against delivery to others should
have been refused in this case.
The facts are stated in the opinion.
Page 217 U. S. 506
MR. JUSTICE Holmes delivered the opinion of the Court.
This is an appeal from a decree enjoining the appellants from
delivering sugar cane grown on the haciendas Florentina and Estero
to the Central Eureka for the term of five crops, beginning with
the crop of the year 1906-1907, or so long within that term as the
appellee is ready to grind and pay for the same, and also from
"selling, donating, renting, or mortgaging said haciendas," without
stipulating for the carrying out of a contract made with the
appellee. The contract referred to bound the appellants to have the
cane grown on the haciendas ground at the sugar factory of the
appellee for the term just stated at a certain price, with mutual
agreements, not necessary to set forth, but, so far as appears,
fair, and made upon equal terms. It was subject to a proviso,
however, that if, on January 15, 1908, the projected Eureka Central
should have been erected or should be in course of construction,
the appellants might cancel the contract, giving notice on October
1, 1907. The notice was given, but the appellee contended that the
Eureka Central referred to was abandoned, and that the central
relied upon as the ground for the notice was one got up by the
appellants and named Eureka with a view to getting out of their
contract with the appellee.
The findings of fact are not entirely satisfactory upon the
point in issue. They set out evidence and avoid a conclusion more
definite than that which we shall state. It appears, however, that
for some years, one Swift had been negotiating for the construction
of a Central Eureka, and was continuing his efforts on December 10,
1906, when the contract was made. But in October, 1906, Javierre
had telegraphed to him that negotiations with him were at an end,
and there was evidence that Javierre and others had met and made an
agreement on October 20 to form a corporation to set up the "said
central," to be called the Central Eureka, "it being almost sure"
that Swift had failed. The parties were to sell their cane to
this
Page 217 U. S. 507
central for ten years. The court studiously avoids finding that
this agreement was made, but does find that, if Javierre signed it,
he did not consider himself bound by it, and, as has been seen, the
contract with the appellee was of later date. The court also finds
that it was not generally known that the planters had held the
alleged meeting, or were contemplating the erection of the central,
and, after stating other details, finds that the appellants have
not proved by a preponderance of evidence that the contract
referred to the Central Eureka started by them or that the Central
Eureka mentioned was other than the one projected by Swift. It
ruled that the burden of proof was on the appellants, and thereupon
made the decree.
There is some preliminary argument that the finding concerning
the continuance of Swift's efforts is not warranted by the
pleadings. If this were true, no objection seems to have been made
in the court below, where no doubt an amendment would have been
allowed, if necessary. But it is a mistake. The bill merely alleges
that Swift's arrangement failed "during the latter part" of 1906,
and qualifies even this by the further allegation that, in the
beginning of December, Javierre stated to the officers of the
complainant (appellee) that he was still bound to Swift, but that
the thing had failed, and that he was disposed to make a contract
with them if he could have a clause providing for the case of
Swift's success. The only real questions concern the ruling on the
burden of proof and the propriety of the relief in such a case as
this.
As to the burden of proof, if that really in any way determined
the result, the ruling was correct. The appellants were seeking to
escape from the contract made by them on the ground of a condition
subsequent, embodied in a proviso. It was for them to show that the
facts of the condition had come to pass. It is said that the bill
alleges affirmatively a conspiracy to evade the undertaking, but
that is merely by way of replication to the answer setting up the
condition, and is nothing but a specific mode of denying that the
condition had
Page 217 U. S. 508
been fulfilled. An allegation of fact that is material only as
an indirect negative of something to be proved by the other party
does not shift the burden of proof.
Starratt v. Mullen,
148 Mass. 570. So there is nothing but the general question to be
considered, and that is answered by the statement of it, and by
repeated decisions of this Court. When a proviso like this carves
an exception out of the body of a statute or contract, those who
set up such exception must prove it.
Schlemmer v. Buffalo,
Rochester & Pittsburgh Ry. Co., Co.
205 U. S.
1;
Ryan v. Carter, 93 U. S.
78;
United States v.
Cook, 17 Wall. 168;
United
States v. Dickson, 15 Pet. 141,
40 U. S. 165.
Therefore, it was for the appellants to prove that the central
referred to by the contract had been built or started. It was not
enough to prove that a central had been built and called by the
same name.
The doubt as to the relief granted below is more serious, and,
in the opinion of the majority of the Court, must prevail.
According to that opinion, a suit for damages would have given
adequate relief, and therefore the appellee should have been
confined to its remedy at law. Again, the Court would not undertake
to decree specific performance and to require and to supervise the
raising of the crop and the grinding of the sugar, for even the now
remaining period of the decree. There is a certain anomaly in
granting the half-way relief of an injunction against disposing of
the crops elsewhere when the Court is not prepared to enforce the
performance to accomplish which indirectly is the only object of
the negative decree. There is, too, a want of mutuality in the
remedy, whatever that objection may amount to, as it is hard to see
how an injunction could have been granted against the appellee had
the case been reversed.
Rutland Marble Co. v.
Ripley, 10 Wall. 339. Notwithstanding these
considerations, I should have preferred to affirm the decree, but,
as my reasons have been stated to my brethren, and have not
prevailed, it is unnecessary to repeat them now.
Decree reversed.