
    WILLIAM J. BREWSTER, Plaintiff, v. GEORGE H. WOOSTER, Defendant.
    
      Contract or Agreement, joint and not several, cannot be enforced or recovered upon by one of the parties—Rescission, one of three joint contractors cwnnot rescind the contract without the consent 'of the other two joint contractors.
    
    
      Held, that the agreement in question was a joint and not a several agreement, on the part of Brown, Brewster and Bateman with defendant; and defendant was under no obligation to convey to them the property described in the agreement until each of the three persons had performed his part of the agreement; and there being no evidence of such performance there was no question that should have been submitted to the jury. The plaintiff could not recover damages as for a breach of the agreement,because there could be no breach on the part of defendant until B. B. and B. had performed or offered to perform their part of the contract, or defendant had waived performance or refused to perform on his part. The plaintiff being one of three joint contractors cannot rescind the contract without the consent of the other two joint contractors.
    AEefore Sedgwick Oh. J., Truax and Dugro, JJ.
    
      Decided March 4, 1890.
    This cause was tried at a trial term before a judge and a jury. The court directed that the' complaint be dismissed, and ordered the exceptions to be heard in the first instance at general term.
    On the 26th day of April, 1876, the defendant, George H. Wooster, entered into a written agreement, under seal, with the plaintiff, William J. Brewster, and Horatio Bateman and Henry S. Brown ; if was provided in said agreement that the said Wooster as party of the first part, should sell to the said parties of the second part, and the said parties of the second part agreed to purchase of said Wooster certain personal property, for which the said parties of the second part agreed to pay to said Wooster the sum $44,000, as follows : $10,000 thereof in satisfactory value by the said Henry S. Brown ; $8,000 thereof by conveying to said Wooster, free from all incumbrances at the date of conveyance except a mortgage for $9,500, the house and lot known as number 403 West 42nd street in said city ; the further sum of $9,000 thereof by conveying to said Wooster, free from all incumbrances except a mortgage for $10,000, the house and lot number 535 West 59th street in said city ; which two pieces of property were to be conveyed by the said William J. Brewster ;—and the further sum of $5,000 by conveying to said Wooster, free from all incumbrances, excepting mortgages to the amount of $11,750—a house and lot in East 77th street; and the further sum of $12,000 by conveying to said Wooster two houses and lots on the south side of West 133rd' street, about 100 feet west of 6th avenue, each of which houses was subject to a mortgage of $9,000—the last two pieces of property were to be conveyed by said Bateman.
    The time when the conveyances were to be made was fixed as of the 30th day of May, 1876.
    On the 2nd day of July, 1876, this agreement was modified by substituting certain other pronerty.
    Further facts appear in the opinion.
    
      Arnoux, Bitch & Woodford, attorneys, and William H. Arnoux of counsel, for plaintiff.
    
      
      Thomas B. Browning, attorney and of counsel, for defendant.
   By the Court.—Truax, J.

Under 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. „

The 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.

On 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 Gilbert 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.

. 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.

The exceptions of the plaintiff are overruled, and judgment is ordered for the defendant with costs and disbursements.

Sedgwick, Ch. J. and Dttgro, J., concurred.  