¶1I concur in the result upon the grounds, first, that as the plaintiff abandoned the contract, and as there was no breach by the defendant, the complaint was properly dismissed; and, second, that, as to the counterclaims, there was no proof and nothing in the stipulation which absolved the defendant from making proof. The stipulation was dependent upon the plaintiff’s success, and yet the defendant’s efforts upon the trial were to prevent that success. The defendant could not well have refrained from giving proof of his counterclaims in reliance upon his own want of success in defeating the plaintiff. If he were mistaken as to- the effect of the stipulation, or for any reason justified in treating it as unconditional, his remedy was to apply for a rehearing. But he certainly was not, upon the plaintiff’s failure, entitled, without proof, to a judgment of any kind upon these counterclaims.
¶2Judgment modified, as directed in opinion, without costs of appeal to either party.