¶1- I think the evidence conclusively shows that the plaintiff never fulfilled his contract and was not entitled to recover the amount that the defendant Goodstein agreed to pay upon its performance. It is conceded that the plaintiff failed to comply with his contract. Goodstein had contracted for iron pipes and the plaintiff had agreed to furnish him with iron pipes. Whether the earthenware- pipes were just as good, Goodstein had a right to say that he' required iron pipes and would pay for nothing but iron pipes, and until the plaintiff complied with his contract and furnished iron pipes lie was not entitled to enforce payment of what was to be paid when iron pipes were furnished. It is not' disputed but that there was evidence to sustain the finding below that the plaintiff, had not complied with liis contract and that compliance, therewith was not waived by the defendant or his agent; and in view of that finding, *325sustained as it is by the evidence, I am at a loss to see upon what principle Goodstein could be held to be liable to the plaintiff or to those furnishing him with materials used by him in doing the work which he did not complete and for which he is not entitled to recover. The testimony excluded seems to me, upon this crucial question in the case, entirely immaterial and does not justify a reversal of the judgment.
¶2I, therefore, dissent.
¶3Judgment reversed, new trial ordered, costs to appellants to abide event.