ANDERSON, J.
When the breach of a contract is relied upon as the gist of the action or defense, it is [558]*558necessary that the declaration or plea allege a breach; otherwise it will be demurrable. — 4 Encyc. PI. & Pr. 937.
If the defendant’s promise or engagement contains as a part of it an exception which qualifies his liability, or in certain instances renders him altogether free from liability, the exception must be stated, though this may not be necessary when the proviso does not go to relieve from liability under the contract entirely. — 9 Cyc. 752, and cases cited in notes 39 and 40.
Nor is it necessary for the plaintiff to negative a proviso which would defeat his action once vested. The border line as to what conditions or provisions should be negatived in the declaration or set up as a defense is quite narrow, and the question is one which has given the courts considerable difficulty in the few cases in which it has been considered. The two leading American cases on the subject are Wilmington & Raleigh R. R. v. Robeson, 27 N. C. 391, and Freeman v. Travelers’ Insurance Co., 144 Mass. 572, 12 N. E. 372. These cases seek to draw a distinction between an exception' and a proviso, defining them as follows: “A ‘proviso’ is properly the statement of something extrinsic of the subject-matter of the contract, which shall go in discharge of the contract, and, if it is a covenant, by way of defeasance. An ‘exception’ is taking some part of the subject-matter of the contract out of it. A proviso need not be stated in the declaration, for this, says Mr. Chitty, ought to come from the other side.- — 1 Saunders, 334, n. 2; Sir Richard Hotham et al. v. East India Company, 1 Term Rept. 645. In the latter case, Ashurst, J., in speaking of the circumstance which was omitted in the declaration, observes: ‘This, therefore, being a circumstance, the omission of which was to defeat the plaintiff’s right of action, once vested, whether called by [559]*559name a “proviso,” “by way of defeasance,” or a “condition subsequent,” it must in its nature be matter of defense, and ought to be shown by the defendants’.”— Wilmington Case, supra. Our own court has often recognized a distinction between exceptions and provisos and the necessity to negative them in indictments. —1 Mayfield, p. 447, subd. 33.
We think the true test, however, whether it be called an “exception” or “proviso/’ is whether or not it is a condition precedent to liability, or whether or not it is a condition subsequent going to defeat the plaintiff’s action once vested, or if the existence or non-existence of the condition is essential to a breach of the contract, or merely affords a defense for a failure to comply with same or for a breach of same. If it is a condition precedent, it should be set forth in the declaration and can be met by a general denial. If it is not a condition precedent to a breach, but merely justifies or excuses a breach in certain instances or for certain causes, it is defensive matter, which need not be negatived or set out in the declaration.- — Tyson v. Weil, 169 Ala. 558, 53 South. 912.
We think the third clause of the contract in question was intended to indemnify the owner of the house by way of liquidated damages against a delay in completing the building, but exempts or relieves the contractor from liability in case the delay was beyond his control. In other words, the proviso was intended as a defense in a certain instance to a right of action vested upon a breach by delay, and is not a condition precedent. “Every case depends upon the nature of the stipulation or condition, as well as upon the form of it.”
We think the condition in question was intended to afford defensive matter to the delay by showing that it was not within the control of the contractor — a negative [560]*560averment peculiarly within his knowledge and upon whom rested the burden of proof, and is not one upon which the plaintiff’s right of action is grounded. Vincent v. Rogers, 30 Ala. 472; Gains v. State, 149 Ala. 29, 43 South. 137; Farrall v. State, 32 Ala. 557; 1 Greenleaf on Ev. § 74; Davis v. Arnold, 143 Ala. 228, 39 South. 141; Rogers v. Brooks, 105 Ala. 549, 17 South. 97. As above stated, the border line between provisos and exceptions is narrow, and there may be authorities and text-books which would require that this exception be set out in the declaration, but to so hold would be illogical. If the exception had to be negatived by the declaration, the contractor would only have to take issue, and thus show any reasonable cause for the delay peculiarly within his knowledge and without giving the owner the slightest intimation by the pleading what special excuse would be brought forth. As it is, the cross-complaint (which is recoupment plea 3) states a prima facie case, and which would be made out by proof of the delay. Then if the contractor does not deny the delay, but confesses it and seeks to avoid it, under the right given him by the contract, he should plead it, and set up the facts relied upon to show that the said delay was not within his control, and which would put the owner on notice of the character of defense he had to meet. The case of Vincent v. Rogers, 30 Ala. 472, upon first blush appears to be in conflict with the present holding, but a careful examination of the contract there considered shows that money was; paid over to Rogers to be used for certain purposes, and the court merely suggested that the plaintiff- should have gone a step further, and made out a prima facie case by averring that the defendant had incurred no liability for her under the contract, or by some other averment show a right of action at law. In other words, should have averred a breach of the [561]*561trust and which is a very different contract from the one now involved. The defendant’s third plea ivas recoupment, and was in the nature of a cross-action, hut was uot defective for failing to negative that the delay complained of ivas beyond the control of the plaintiff, and the trial court did not err in overruling the demurrer to same.
The second plea is recoupment, setting up various and sundry things connected with the construction of the building as constituting a breach of the contract. The only ground of demurrer to same, the tenth, insisted upon, that questions the plea in its entirety, is but- a general demurrer, setting up a mere legal conclusion and a non-compliance with the law.
While grounds 3 and 1 of the demurrer are addressed to the Avliole plea, yet they only set up as against the sufficiency thereof certain items, and should he addressed to said items, and not the AAdiole plea, if a demurrer Avould be the proper way to question these items which Ave do not decide.
There Avas no error in sustaining the demurrers to replications 10 and 11. It is time the contract relieved the defendant from delays beyond his control, hut the pleas should liaAe set up the nature and cause of the delay, and not rested upon a mere conclusion.
The plaintiff, having recovered a judgment in this •case, and being dissatisfied with the amount of damages, has prosecuted this appeal.
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ANDERSON, J.
When the breach of a contract is relied upon as the gist of the action or defense, it is [558]*558necessary that the declaration or plea allege a breach; otherwise it will be demurrable. — 4 Encyc. PI. & Pr. 937.
If the defendant’s promise or engagement contains as a part of it an exception which qualifies his liability, or in certain instances renders him altogether free from liability, the exception must be stated, though this may not be necessary when the proviso does not go to relieve from liability under the contract entirely. — 9 Cyc. 752, and cases cited in notes 39 and 40.
Nor is it necessary for the plaintiff to negative a proviso which would defeat his action once vested. The border line as to what conditions or provisions should be negatived in the declaration or set up as a defense is quite narrow, and the question is one which has given the courts considerable difficulty in the few cases in which it has been considered. The two leading American cases on the subject are Wilmington & Raleigh R. R. v. Robeson, 27 N. C. 391, and Freeman v. Travelers’ Insurance Co., 144 Mass. 572, 12 N. E. 372. These cases seek to draw a distinction between an exception' and a proviso, defining them as follows: “A ‘proviso’ is properly the statement of something extrinsic of the subject-matter of the contract, which shall go in discharge of the contract, and, if it is a covenant, by way of defeasance. An ‘exception’ is taking some part of the subject-matter of the contract out of it. A proviso need not be stated in the declaration, for this, says Mr. Chitty, ought to come from the other side.- — 1 Saunders, 334, n. 2; Sir Richard Hotham et al. v. East India Company, 1 Term Rept. 645. In the latter case, Ashurst, J., in speaking of the circumstance which was omitted in the declaration, observes: ‘This, therefore, being a circumstance, the omission of which was to defeat the plaintiff’s right of action, once vested, whether called by [559]*559name a “proviso,” “by way of defeasance,” or a “condition subsequent,” it must in its nature be matter of defense, and ought to be shown by the defendants’.”— Wilmington Case, supra. Our own court has often recognized a distinction between exceptions and provisos and the necessity to negative them in indictments. —1 Mayfield, p. 447, subd. 33.
We think the true test, however, whether it be called an “exception” or “proviso/’ is whether or not it is a condition precedent to liability, or whether or not it is a condition subsequent going to defeat the plaintiff’s action once vested, or if the existence or non-existence of the condition is essential to a breach of the contract, or merely affords a defense for a failure to comply with same or for a breach of same. If it is a condition precedent, it should be set forth in the declaration and can be met by a general denial. If it is not a condition precedent to a breach, but merely justifies or excuses a breach in certain instances or for certain causes, it is defensive matter, which need not be negatived or set out in the declaration.- — Tyson v. Weil, 169 Ala. 558, 53 South. 912.
We think the third clause of the contract in question was intended to indemnify the owner of the house by way of liquidated damages against a delay in completing the building, but exempts or relieves the contractor from liability in case the delay was beyond his control. In other words, the proviso was intended as a defense in a certain instance to a right of action vested upon a breach by delay, and is not a condition precedent. “Every case depends upon the nature of the stipulation or condition, as well as upon the form of it.”
We think the condition in question was intended to afford defensive matter to the delay by showing that it was not within the control of the contractor — a negative [560]*560averment peculiarly within his knowledge and upon whom rested the burden of proof, and is not one upon which the plaintiff’s right of action is grounded. Vincent v. Rogers, 30 Ala. 472; Gains v. State, 149 Ala. 29, 43 South. 137; Farrall v. State, 32 Ala. 557; 1 Greenleaf on Ev. § 74; Davis v. Arnold, 143 Ala. 228, 39 South. 141; Rogers v. Brooks, 105 Ala. 549, 17 South. 97. As above stated, the border line between provisos and exceptions is narrow, and there may be authorities and text-books which would require that this exception be set out in the declaration, but to so hold would be illogical. If the exception had to be negatived by the declaration, the contractor would only have to take issue, and thus show any reasonable cause for the delay peculiarly within his knowledge and without giving the owner the slightest intimation by the pleading what special excuse would be brought forth. As it is, the cross-complaint (which is recoupment plea 3) states a prima facie case, and which would be made out by proof of the delay. Then if the contractor does not deny the delay, but confesses it and seeks to avoid it, under the right given him by the contract, he should plead it, and set up the facts relied upon to show that the said delay was not within his control, and which would put the owner on notice of the character of defense he had to meet. The case of Vincent v. Rogers, 30 Ala. 472, upon first blush appears to be in conflict with the present holding, but a careful examination of the contract there considered shows that money was; paid over to Rogers to be used for certain purposes, and the court merely suggested that the plaintiff- should have gone a step further, and made out a prima facie case by averring that the defendant had incurred no liability for her under the contract, or by some other averment show a right of action at law. In other words, should have averred a breach of the [561]*561trust and which is a very different contract from the one now involved. The defendant’s third plea ivas recoupment, and was in the nature of a cross-action, hut was uot defective for failing to negative that the delay complained of ivas beyond the control of the plaintiff, and the trial court did not err in overruling the demurrer to same.
The second plea is recoupment, setting up various and sundry things connected with the construction of the building as constituting a breach of the contract. The only ground of demurrer to same, the tenth, insisted upon, that questions the plea in its entirety, is but- a general demurrer, setting up a mere legal conclusion and a non-compliance with the law.
While grounds 3 and 1 of the demurrer are addressed to the Avliole plea, yet they only set up as against the sufficiency thereof certain items, and should he addressed to said items, and not the AAdiole plea, if a demurrer Avould be the proper way to question these items which Ave do not decide.
There Avas no error in sustaining the demurrers to replications 10 and 11. It is time the contract relieved the defendant from delays beyond his control, hut the pleas should liaAe set up the nature and cause of the delay, and not rested upon a mere conclusion.
The plaintiff, having recovered a judgment in this •case, and being dissatisfied with the amount of damages, has prosecuted this appeal. Therefore the only • charges or rulings necessary to be considered are those Avhich may affect the quantum of damages, as all errors, if any Avere committed, Avliich do not bear upon the damages, but upon the plaintiff’s right to recover, or whether or not the defendant Avas entitled to a judgment -over, were cured by the verdict in favor of the plaintiff.
There Avas no error in giving charges 1 and 2 at the [562]*562request of the defendant. They were held good upon the former appeal, and the argument now against them is that they permit a recovery over when, the contract confined the damages for delay to he deducted from any unpaid balance due the plaintiff. If this was error, which we do not decide, it was cured by the verdict, as there was a judgment for the plaintiff.
There was no reversible error in giving charge 3 requested by the plaintiff. It does not require proof of the replications collectively, but merely puts the burden upon the plaintiff of proving each of them before either of them can countervail the pleas if the pleas were proven. It is true it should not have referred to replications 10 and 11, which went out on demurrer, but this was an oversight which should have been brought to the attention of the court or corrected by a counter instruction.
Charge 4 instructed for a finding against the plaintiff under the fact hypothesized, and, if error, was cured by the verdict.
Charges 1 and 3, refused the plaintiff, if not otherwise bad, sought to charge the defendant for any fault in the delay, and pretermitted confining her liability to the causes of delay as set up in the pleading.
Charge 4, refused the plaintiff, is subject to many criticisms which would render it bad, as well as misleading. It exonerates Pike unless the delay was wholly due to his fault, or if partly, though ever so< slightly, was due to the defendant. The jury could be misled by said charge into excusing Pike for the delay if the defendant was at fault in the slightest, notwithstanding Pike could have obviated the delay. It also fails to charge the defendant with such faults or causes of delay as is pleaded in the replications. It also pretermits her right to recoup or offset any damages for a breach of [563]*563the contract other than for a delay, Avhen it was a question for the jury as to whether or not there were breaches as to the character of work and material, and which she did not necessarily waive by accepting the house.
There was no error in refusing charge 5 requested by the plaintiff. If not otherwise bad, it seeks to charge the defendant Avith a Avaiver of defects by failing to point them out when she accepted the house and whether they were latent or patent, and whether or not she kneAV of them. Charges 5a and 6 are subject to the same criticism as is directed to charge 5. There is nothing in the case of Aarnes v. Windham, 137 Ala. 513, 34 South. 816, that constitutes the acceptance of a house a Avaiver of defects in the construction, unless the defects Avere knoAvn to the owner or were patent.
There was no error in refusing charges 7, 8, 9 and 10 requested by the plaintiff. They seek to invoke a Avaiver of the delay damages under the contract upon the theory of a waiver by a subsequent modification or alteration of the original contract, and it is questionable whether such a waiver was available without a special replication setting it up. Moreover, the charges invaded the province of the jury, and, in effect, instructed that the existence of the facts therein hypothesized constituted as matter of law a waiver of damages for the delay Avhen it was at least a question for the jury to determine Avhether or not the defendant waived her right to claim damages for delay by furnishing wire, discharging Biggers at the suggestion of the plaintiff and in permitting him to proceed with the work. — Hawman v. Yellow House Turnpike Co., 2 Woodw. Dec. (Pa.) 332. In the case of Cornish v. Suydam, 99 Ala. 620 13 South. 118, there was a novation of the original contract. — United Fidelity Co. Case, 138 Ala. 367, 35 South. 344. Not a slight alteration as to minor details and which did not [564]*564necessarily show a waiver as a matter of law of the previous delay, either by said modification or in permitting the contractor to proceed with the work, and which said question of waiver in the instant case should have been submitted to the jury. Moreover, said Cornish Case, supra, was tried by the court without a jury, and this court properly held that the second contract was a waiver.
Charge 11 was properly refused. If not otherwise bad, it pretermits the defendant’s plea of recoupment, and which we have heretofore held Avas sufficient.
Whether or not charges 13 and 15 requested by the plaintiff should have been given we need not decide, as the refusal, if error, was rendered harmless by the verdict of the jury. They charge against a judgment over for the defendant, and there was no judgment over, but a verdict in favor of the plaintiff.
It is questionable whether or not the objections to the testimony should be considered, as they should have been properly made to the questions, yet said testimony was competent and went to support the defendant’s pleas.
The judgment of the laAv and equity court is affirmed.
Affirmed.
Simpson, McClellan, and Mayfield, JJ., concur.