The opinion of the court was delivered by
The question for our consideration is,
The payment of the money was conditioned, if Ingle fulfilled a certain agreement. The agreement on his part was to give or pay in goods $3,750 for the defendant’s farm. The performance. of this agreement was the condition upon which the money was to be paid. The averment in the state of demand is, that Ingle did well and truly perform his agreement; that is, that he did pay in goods $3,750 for the defendant’s farm. The evidence did not show a performance of the condition by Ingle, but an excuse for not performing it. Now, it is well settled, that an averment of performance of condition precedent, is not sustained by proof of an excuse for non-performance. 1 Chit. Pl. 309-10; Shinn v. Roberts, 1 Spencer’s Rep. 435, and cases there collected. Had the plaintiff set out in his state of demand the fact as proven on the trial, that Ingle was prevented from performing his agreement by the conduct of the defendant Shinn, then under the evidence exhibited in the state of the case, there would have been no difficulty in a recovery.
Let the judgment be reversed.