Page:Federal Reporter, 1st Series, Volume 2.djvu/667

 660 FEDERAL REPORTER. �no action to recover loss shall be sustainable "until after an aw^ard shall have been obtained fixing the amount of sueh claim in the manner above provided," must be held to apply only to a case where the written request for arbitration bas been made, as provided for in the preceding ninth condition. �The pleadings in this case would indicate that counsel on both sides are proceeding upon the theory that the defence of a f ailure to arbitrate may be set up without a showing that there was a written request made in pursuanee of the policy for such arbitration. In this they are clearly in error. The question of arbitration cannot figure at ail in the case until a written request is alleged. Nor does it make any differ- ence that one or the other party may bave refused to arbi- trate upon a verbal request to do so, or may have refused to make the request in writing. �The demurrer to the amended replication ia austained. ���Daeland V, Geeenwood. (Circuit Court, D. lowa. May 1880.) �PlEADING — CONTRACT CONTAINING MUTUAL CONDITIONS. — In 8n aCtîon �for the breach of a contract containing mutual conditions, performance or readiness to perform must be averred by the plaintifl. �Demurrer to petition. �J. E. Owens, for plaintiff. �Starr, Harrison e Danforth, for defendant. �McCeaey, C. J., (prally.) 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 $600 each, and was also the owner of 80 acres of land in the state of Illinois. Defendant owned a bouse and two lots in the town of Marble Eock, lowa, in which house he owned and kept a stock of merchandise. �It was agreed between plaintiff and defendant that defend- ����