
    ALEXANDRIA RAILROAD COMPANY vs. NATIONAL JUNCTION RAILROAD COMPANY.
    At Law.
    No. 9723.
    A declaration alleging that the defendant by a written agreement was to deliver $100,000 in bonds to the plaintiff on or before a specified day, upon condition that plaintiff should deliver to defendant a bond in the same amount, without also averring that plaintiff executed its bond and tendered it, is bad on demurrer. An allegation that plaintiff was ready and willing to execute such bond is not sufficient.
    STATEMENT OE THE CASE.
    The declaration alleges that on October 11,1869, a preliminary and provisional agreement was entered into and signed by proper parties representing the plaintiff and defendant, the terms of which are stated at some length. It is th en alleged that the two companies on January 28, 1870, executed and mutually delivered their contract in writing, which stipulated, among other things, that the defendant, in consideration of the undertaking of the plaintiff, agreed to deliver to said plaintiff $100,000 of its indorsed bonds on or before July 1,1870, upon the condition that before the said delivery the plaintiff should execute and deliver to the defendant, with sufficient sureties, its bond in the sum of $100,000, conditioned that it would construct a bridge and railroad thereon to cross the Potomac River within a time mentioned in the agreement. The declaration then goes on to allege that on the 1st of July, 1870, the plaintiff, at the office of the defendant, demanded the said $100,000 of bonds, and then and there offered to execute its bond with surety as provided in the contract; that the defendant asked sixty days’ time within which to comply with the demand; to which the plaintiff assented, and has all times been ready and willing to execute its said bond with surety, and that the said defendant has wholly neglected and refused, &c.
    The defendant demurred to the declaration on the groun d that the plaintiff had not distinctly averred a sufficient performance of plaintiff’s part of the agreement. There was a joinder, and the demurrer was certified to the general term, to be heard in the first instance.
    E. L. Stanton and A. S. Worthington, for the demurrer, argued that—
    As to the delivery by the Junction company of $100,000 in its indorsed bonds, it was under that contract a condition precedent, obligatory upon the Alexandria company, that the latter should first not only proceed with its work under that agreement, but also should first execute and deliver its own bond for $100,000, with sufficient surety, conditioned for the completion of its railroad and bridge within the time stipulated. It was the plaintiff’s duty to perform its part so far as it could. It was of the essence of the contract that the Junction company should not trust to the mere promise of the Alexandria company. Before delivery of its guaranteed bonds, the former had a right to the formal possession of an adequate security in the bond of the Alexandria company with sufficient sureties upon it. The request for sixty days’ time did not release the Alexandria company from performance of this condition precedent, and no such averrment is made. Besides, to be valid, such release must have been under seal. At the end of the sixty days the plaintiff did not call upon defendant for the Junction company’s bonds, nor did it tender its own bond with sureties, or even offer to execute such bond. The declaration, therefore, is bad, because it avers neither performance by the plaintiff, of its precedent obligation, nor release by the defendant therefrom. Holdipp vs. Otway, 2 Williams’ Sanders, 106; Austin vs. Jervoyse, Hobart, 69; 2 Rolle’s Rep., 238; Roberts vs. Brett, 11 H. & L. cases, 337; West vs. Blakway, 2 Man. & Gr., 729; Brymer vs. Thames Haven Co., 2 Exch., 519.
    
      Riddle contra.
   By the Court :

There is not a sufficient performance on the part of the plaintiff averred in the declaration, and to entitle it to succeed it must allege aud prove that it actually executed its bond with good and sufficient sureties, and tendered it to the defendant.

The demurrer is sustained and the cause remanded to the circuit with leave to amend the declaration.

In this case Mr. Justice Humphreys and Mr. Justice MacArthur did not sit. Chief-Justice Cartter and Mr. Justice Wylie concurred in the decision, and Mr. J ustice Olin dissented.  