
    Nils P. Johnson vs. John D. Howard.
    When parties to a contract stipulate that a commodity, the delivery of which is the subject matter of the agreement, shall he measured by a third person designated, and the measurement is defined and fixed, such stipulations are binding upon both parties.
    In an action for the price of stone delivered under such contract, the plaintiff must allege that the stone delivered have been measured by the person designated in the agreement, and that the quantity charged has been ascertained by such measurement, or he must state ¿facts which relieve him from the necessity of alleging or proving these things.
    The general allegation in the complaint, that “the plaintiff has duly performed all and singular the conditions to be performed on his part in pur_ suance of the contract,” is not sufficient. Sec. 92, cJiap. 66, Gen. Stat. is not applicable to such a state of facts.
    Appeal from an order of the district court for St. Louis county, overruling a demurrer to the complaint, which was upon a written contract, made between the plaintiff of the first part and defendant of the second part, and containing the following provisions:
    “ In consideration, &c., the party of the first part covenants and agrees to furnish to said party of the second part, one thousand or more cords of stone, as hereinafter specified, viz.: The quality of said rock or “ Quality.” stone shall be sucb as shall be accepted by tbe government officers in charge of the Superior Harbor Improvements at the “ Entry.”
    Said stone shall be delivered broken, as" required, on board of boats to be furnished “ Delivery.” by said party of the second part, and as fast as may be required to fill the cribs of said improvement; said party of the first part shall not be responsible for the delivery of stone at cribs, or for non-delivery ' by reason of wreck. The place of delivery “ Place of.” shall be on the north shore of Lake Superior, within six miles of the elevator at Duluth, and at such places as a scow or steamboat may float with safety to be loaded. The stone shall be measured by the “ Measurement.” government officer in charge of the U. S. work, and shall be the same as may be allowed said party of the second part.
    The price to be paid for each and every “ Price.” cord of rock, as above specified, excavated 4 and delivered, shall be the sum of $3.75-100 by said party of the second part.
    The payment for said rock, so delivered, “ Payments.” shall be made by said party of the second part, as often as government estimates are made thereof on said work.
    After thus setting forth the contract, the complaint proceeds : “ That between the 22d May, 1871, and the 20th October, 1871, this plaintiff delivered to the defendant 1,356 cords of stone of good quality, and broken as required, upon the boats furnished by said defendant, .on the north shore of Lake Superior, and within six miles of the elevator at Duluth, at places where scows and steamboats could float with safety to be loaded, and as fast as the said stones were required to fill the cribs at the Superior Harbor Improvement at the “ Entry.” That the said defendant took and removed the said stones so furnished, upon the boats whereon the same were loaded by this plaintiff, and took full and entire charge of the same, and that the government estimates for the Harbor Improvement in said Superior Entry were fully made before the 15th February, 1872, and this plaintiff avers that he has duly performed all and singular the conditions to be performed on his part, in pursuance of the contract herein-before set forth.” The complaint admits certain partial payments, alleging a balance due, for which judgment is demanded.
    Egan & Billson, for Appellant.
    Setzeb & Thompson, for Respondent.
   By the Court.

McMillan, Ch. J.

The particular portion of the agreement, upon which the defendant relies in support 'of his demurrer to the complaint, is the following clause :

“ The *stone shall be measured by the government officer in charge of the U. S. “ Measurement.” work, and shall be the same as may be allowed said party of the second part.”

The language of this clause of the agreement, set forth in the complaint, whether considered by itself, or in connection with the rest of the instrument, and the marginal notations by the parties opposite the several clauses of the contract, will admit of but one reasonable construction, which is that the stone shall be measured by the officer therein designated, and the measurement shall be the same as may be allowed said party of the second part.

It is to be inferred from tbe agreement, that tbe stone to be delivered to tbe defendant under tbe contract were to be used by bim in fulfilling a contract with tbe United States government, and that, under tbe latter contract, tbe measurement of tbe stone was to be made by a government officer in charge of tbe public work. The parties to this contract intended, we think, to make tbe measurement of tbe officer, under that contract, the standard for determining tbe quantity of stone delivered under this one. Tbe parties have thus, by their mutual stipulation, determined upon tbe manner in which tbe quantity of stone delivered under the contract shall be ascertained, and have designated a third person as tbe person who shall, by his measurement, ascertain and determine such quantity. The stipulation thus made is binding upon both parties, and in order to maintain an action against tbe defendant, for a breach of tbe agreement in refusing to pay for tbe stone delivered, tbe plaintiff must allege that tbe stone delivered have been measured by tbe officer designated in tbe agreement, and that tbe quantity charged has been ascertained by such measurement, or else be must state facts which relieve bim from tbe necessity of alleging or proving these things. United States vs. Robeson, 9 Pet. 326 ; Butler vs. Tucker, 24 Wend. 447; Smith v. Briggs, 3 Den. 73.

It is claimed by the plaintiff, that under sec. 92, chap. 66, Gen. Stat., it is not necessary to aver these facts, but that tbe general allegation in tbe complaint, “ that tbe plaintiff has duly performed all and singular tbe conditions to be performed ■ on bis part in pursuance of the contract,” is sufficient.

Tbe section of tbe statute relied on is as follows: “ In pleading tbe performance of conditions precedent in a contract, it shall not be necessary to state tbe facts showing such performance, but it may be stated generally that tbe party duly performed all tbe conditions on bis part; and if such allegation is controverted, tbe party pleading is bound to establish on the trial the facts showing such performance.” Whatever may be the effect of this section, we are of opinion that it is not applicable to the facts of this case. By the terms of this agreement, the measurement of the stone is to be made, and the quantity delivered to be ascertained, not by the plaintiff, nor by the defendant, but by a third person, a stranger to the contract, who, by the stipulation is, pro hac vice, the agent of both parties Graham vs. Machado, 6 Duer, 514, 518.

If it is necessary for the plaintiff to aver the measurement of the stone by the officer designated in the agreement, and the quantity delivered as determined by such measurement, or to allege facts which supersede the necessity of such aver-ments, then no sufficient allegation of delivery can be made without such averments. The allegation of delivery, contained in the complaint, is therefore bad, and, not being well pleaded, is not admitted by demurrer.

The order overruling the demurrer is reversed.  