Hawkins sued Wilstach. His complaint contains two paragraphs:
*5421. Upon a memorandum of agreement between the parties.
2. For work and labor.
The writing is as follows:
“Memorandum of agreement, made this 11th day of May, 1857, between, &c. Said Hawkins agrees to break the s. e. s. e., sec. 29, t. 25, r. 6 w., in, &c., adjoining said Hawkins'1 land, to plant the same in corn in a good, farmer-like manner the present season, in the usual mode of planting sod land, for 175 dollars, of which 50 dollars to be paid as soon as corn planted, and the remainder to be paid by the crop raised, taking corn enough in the shock, in the field, to pay the balance at the rate of 15 cents per bushel, if enough is raised, if not enough, the deficiency to be made up in cash by said Wilstach,” &c.
The first paragraph avers that the plaintiff performed, &c., and that the defendant did not perform in this “that he failed to pay the plaintiff the balance of 125 dollars, either by furnishing corn in the shock in the field, according to the terms of the contract, or in any other manner, but so to do, although often requested, has failed and refused,” &c.
The second is for breaking 40 acres of land at 4 dollars and 50 cents per acre.
The defendant filed his affidavit, stating that there never existed but one contract between the parties—that attempted to be embodied in the writing sued on, and that both paragraphs were based upon the same supposed cause of action; and, also, his written motion, that the plaintiff be compelled to elect upon which paragraph he would rely.
The Court overruled the motion, to which ruling, the record of the clerk states, the defendant excepted. There is no bill of exceptions embodying the affidavit, or the motion and ruling thereon.
We cannot perceive that the Court erred in this ruling. Whether the affidavit of a party would be sufficient in any instance to base such a motion upon, we need not decide, as we do not believe the facts in this case are such as required an order of the kind by the Court.
*543The defendant demurred to the first paragraph of the complaint, because it did not state what the deficiency was, nor did it specially aver a demand of the corn or of the money, &e. The demurrer was overruled.
It is insisted with much earnestness by the defendant, that the proper construction of the contract would require the plaintiff to shock the corn, husk it, and measure it, and then show to, and demand of, the defendant the balance, or deficiency, if any; and that the complaint should, by proper averments, charge these things to have been done.
We do not so construe the contract, the main features of which were, that the plaintiff was to break and plant a certain number of acres of land, for which the defendant was to pay 175 dollars—50 dollars when the planting was done. Corn that might be produced by such planting was to be taken at a fixed price per bushel in the shock in the field. Of course certain labor was necessary to place it in shock before it was in a condition to be taken by the plaintiff. As no direct agreement was made by these parties as to who should perform, or be at the expense of, that labor, we are clearly of opinion it fell upon the owner of the corn; and if he failed, as is alleged, to cause it to be so placed in shock, he would not have the crop so raised, in the condition necessary to enable him to perform, or offer to perform, his part of the contract as to the delivery of said corn. It is manifest that a sufficient excuse is, therefore, shown for not making or averring a special demand of the corn, even if such demand was necessary.
The defendant answered to the second paragraph of the complaint:
1. A general denial.
2. That he never made any contract other than the written one, &c.; that he did not agree by said contract to put said corn in shock; that the crop lies neglected and spoiling; that defendant has paid 57 dollars, &c., and has performed, &e.; That Hawkins has made no demand on him for said crop, nor offered to receive the same.
As well as we can gather from the record, the above con*544tains the substance of those parts of the answer not stricken out.
H. W. Chase and J. A. Wilstach, for the appellant. (1) I. M. La Rue and D. Royse, for the appellee. (2)Upon motion of the plaintiff, a portion of the answer to said second paragraph was stricken out, but no bill of exceptions appears in the record containing the parts so stricken out, and the insertion thereof by the clerk does not bring the same before us in proper form to enable us to pass upon the ruling of the Court.
The answer to the first paragraph is, that the defendant reiterates and reaffirms each and every allegation and averment in the second paragraph of his answer to the second of the complaint. There was no demurrer to this answer.
A general denial, by way of reply, was filed to that as well as the second paragraph of the answer to the second paragraph of the complaint.
Trial by the Court; finding for the plaintiff; and judgment, over a motion for a new trial, for 125 dollars.
The evidence is not in the record; we must, therefore, presume it was sufficient to sustain the finding.
Per Owriam.The judgment is affirmed with 3 per cent, damages and costs.