no action to recover loss shall be sustainable "until after an award shall ha.ve been obtained fixing the amount of such claim in the manner above provided," must be held to apply only to a case where the written request for arbitration has 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 failure to arbitrate may be set up without a showing that there was a written request made in pursuance of the policy for such arbitration. In this they are clearly in error. The question of arbitration cannot figure at all in the case until a written l'equest is alleged. Nor does it make any difference that one or the other party may have refused to arbitrate upon a verbal request to do so, or may have refused to make the request in writing. The demurrer to the amended replication is sustained.
(Circuit Oourt, D. Iowa.
PLEADmG-CONTRACT CONTAINING MUTUAL CONDITION8.-In an action
for the breach of a contract containing mutual conditions, performance or readiness to perform must be averred by the plaintiff.
Demurrer to petition. J. E. Owens, for plaintiff. Starr, Harrison it Danforth, for defendant. MCCRARY, C. J., (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 $500 each, and was also the owner of 80 acres of land in the state of Illinois. Defendant owned a house and two lots' in the town of Marble Rock, Iowa, in which house he owned and kept a stock of merchandise. It was agreed between plaintiff and defendant that defend-
ant should sell and convey to plaintiff said house and lots, and the merchandise aforesaid, and that the plaintiff should pay for the same as follows: 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 encumbrance; 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 "defendant 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 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 conV'ey to plaintiff a house and lot, al;ld 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 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. LaDS and others.
(Circuit Oourt, D. Iowa. 1t'Iay, 1880.)
CONTRACT FRAUD -
Inexcusable delay will operate u
a ratification of a fraudulent contract.