¶1(dissenting) :
¶2The plaintiff and the. defendant made a written contract by which ■the latter agreed to build a boat for the former for $1,455, and have it completed and ready for delivery on July 1st following,' and the plaintiff agreed to pay therefor, in four equal installments, viz., $363.75 on the signing of the contract, the same amount when the boat was in frame, the same amount when it was.launched, and the balance when it was ready for delivery. The complaint, after alleging "the contract, alleges that the plaintiff paid the first and second installments. It then alleges that the defendant failed to complete the boat by the time agreed upon-; that thereafter the plaintiff notified the defendant that unless the boat was completed by July 25th he would rescind the contract and require the amounts paid by him to -be returned ; that the defendant failed to complete by that time, whereupon the plaintiff rescinded and demanded back the said amounts; and the prayer is for judgment therefor.-
¶3The defendant agreed to have the boat completed by July' 1st, but only on performance by the plaintiff of the condition precedent that lie should pay three successive installments at certain stages of the work before, completion. There is no allegation in the complaint of performance of such" condition precedent. The allegation is only of the payment of the first and second installments. If there were an allegation that the work was not done up to the stage for the payment of the third installment, that would be an excuse for its non-payment, but there is no such allegation. The plaintiff had no. right to rescind if he was himself in default, i. 6., unless he *242had performed the condition precedenteto his right to have the boat completed. There being no allegation that he had so performed, no'cause of action is alleged in the: complaint.
¶4The judgment should be reversed and the demurrer sustained.
¶5Interlocutory judgment affirmed, with costs. .