
    William J. Brewster, Pl’ff, v. George H. Wooster, Def’t.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed March 4, 1890.)
    
    1. Contract—Breach.
    Defendant agreed to convey certain personal property to plaintiff and two others, for which they were to pay by severally conveying certain real estate owned by them respectively. Held, that the agreement was a joint and not a several one, and that defendant was under no obligation to convey until each of the three persons had performed his part.
    2. Same—Rescission.
    Plaintiff being one of three joint contractors, was not entitled to rescind the agreement without the consent of the other two, and if he were the only person who contracted with defendant, the contract could only be rescinded by the acts or assent of both parties thereto.
    Motion for a new trial on exceptions ordered to be heard in the first instance at general term after a dismissal of the complaint at trial term.
    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, Horatio Bateman and Henry S. Brown; it 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 of $44,000, as follows: $10,000 thfereof in satisfactory value by the said Henry S. Brown; $8,000 thereof by convening to said Wooster free from all incumbrances at the date-of conveyance except a mortgage of $9,500, the house and lot known as No. -403 West Forty-second 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 No. 535 West Fifty-ninth street in said city; which two-pieces of property were to be conveyed by the said William X 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 Seventy-seventh street; and the further sum of '$12,000 by conveying to said Wooster two houses and lots on the south side of West One Hundred and Thirty-third street, about 100 feet West of Sixth 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 Bate-man.
    The time when the conveyances were to be made was fixed as of the 30th day of May, 1876.
    On the 2d day of July, 1876, this agreement was modified by substituting certain other property. Further facts appear in the. opinion.
    
      Arnoux, Hitch & Woodford, for pl’ff; Thomas B. Browning, for def’t.
   Truax, J.

Tinder 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 agreement; that is, the agreement on the part of Brown, Brewster and Bate-man 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. Plimpton 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. Eng. Iron Company v. The Gilbert Elevated Railway 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 evidence in this case that shows the value of the real estate conveyed to the defendant by plaintiff, and, therefore, no sum that plaintiff is entitled to recover is shown.

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

Sedgwick, Ch. J., and Dugro, J., concur.  