¶1Under the agreements between the defendant and Brown, Brewster and Bateman, the defendant was under no obligation to convey to .the said Brown, Brewster and Bateman the property mentioned in the agreements until each of the three persons- above named had performed his part of the agreements ; that is,. the agreement on the part of Brown, Brewster and Bateman was a joint and not a several agreement; there was no evidence that would warrant the jury in finding that they had performed their part of the agreement, and, therefore, there was no question that should have been submitted to the jury. „
¶2The plaintiff could not recover damages as for a breach of the contract, because there could be no breach on the part of the defendant until Brown, Brewster and Bateman had performed, or offered to perform, their part of the contract, Nelson v. Plympton Fireproof Elevating Co., 55 N. Y. 480—or the defendant had waived performance or had refused to perform on his part, Lawrence v. Miller, 86 N. Y. 131—in which event, such waiver of performance or refusal to perform must be alleged in the complaint and proved on the trial, Oakley v. Morton, 11 N. Y. 25.—which was not done in this case.
¶3On the other hand the plaintiff on the trial sought to recover as on the rescission of the contract, but the. plaintiff who is but one of three joint contractors, is not entitled to rescind the contract without the consent of the other two joint contractors. The case does not show that plaintiff ever has obtained this consent, and if he were the only person who had contracted with the defendant, the contract could only be rescinded by the acts or assent of both parties thereto, The N. Y. Iron Company v. The *13Gilbert Elevated Railroad Co., 91 N. Y. 155—in which event the plaintiff would be restored to his original rights, which are to recover what he had paid on the contract. Battle v. The Rochester City Bank, 3 N. Y. 88.
¶4. The evidence shows that plaintiff had paid nothing ; he had, however, conveyed to the defendant certain real estate, and in a proper case would be entitled to recover from the defendant the value of that real estate ; but there is nothing in the evidénce in this case that shows the value of the real estate conveyed to the defendant by plaintiff and therefore: no srim that plaintiff is entitled to recover is shown.
¶5The exceptions of the plaintiff are overruled, and judgment is ordered for the defendant with costs and disbursements.
¶6Sedgwick, Ch. J. and Dttgro, J., concurred.