Page:Federal Reporter, 1st Series, Volume 2.djvu/668

 CUMMINS V. LODS, 661 �ant should sell and convey to plaintifif said house and lots, and the merchandise aforesaid, and that the plaintiff should pay for the same as foUows : First, to deliver up and cancel said five promissory notes ; second, to deed to defendant said 80 acres of land, and free the same from encumbranee; third, to pay him $850 in cash; fourth, to assume the liabilities against said store, amounting to some $800 or $900. �After averring these facts, the petition alleges that "defend- ant bas 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 eov- enante 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 breaoh, except upon averring per- formance, 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 con- veyance, to mate the payments named. �In such a case I am clear that the plaintiff cannot main- tain 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. ���; Cummins, Assignee, etc., v. Lods and othera. �{Oircuit Court, D. lowa. May, 1880.) �Contract — Fraud — Ratification. — Inexcusable delay will opente ) a ratification of a f raudulent contract. �A. B. Cummins, for complainani. Brown d: Dudley, for respondents. ����