2 F. 660 | U.S. Circuit Court for the District of Iowa | 1880
(orally.) This is a suit brought to recover damages for the breach of a contract. The plaintiff avers in his petition a contract between himself and defendant as follows: Plaintiff held against defendant five promissory notes for $ BOO each, and was also the owner of 80 acres of land in the Btate of Illinois. Defendant owned a house and two lots in the town of Marble Eock, Iowa, in which house he owned and kept a stock of merchandise.
It was agreed between plaintiff and defendant that defend
After averring these facts, the petition alleges that “defendant has failed and refused to carry out his bargain with the plaintiff, and complete said bargain so entered into on said July 11, 1879, although requested to do so.
To this petition the defendant demurs, on the ground that the same does not show that the plaintiff has performed, or offered to perform, the said contract on his part. The covenants in the contract, as set out in the petition, are mutual covenants, and go to the whole consideration on both sides. They are mutual conditions, and neither party can recover against the other for their breach, except upon averring performance, or readiness to perform, on his own part. The defendant agreed to convey to plaintiff a house and lot, and the merchandise mentioned in the petition, and the plaintiff agreed in consideration thereof, and at the time of such conveyance, to make the payments named.
In such a case I am clear that the plaintiff cannot maintain an action without showing performance on his part or an offer to perform. 2 Parsons on Contracts, 532, note r.
The demurrer to petition is sustained.