
    M. CONNELLY, Appellant, v. POLLARD, EDDY et al., Respondents.
    No. 2448;
    May 11, 1860.
    Contract. — After Failure to Perform What He has Bound Himself to do under an agreement, a party cannot compel performance by the other parties of their part.
    APPEAL from Fourteenth Judicial District, Nevada County.
    This was a suit to enforce the delivery of a deed by Pollard and others composing the Shady Creek Water Company, and for an accounting as to the proceeds of a certain interest in the Irish or Double Tunnel Company. The facts were these: On the 17th of June, 1856, Pollard, the agent of the water company, entered' into an agreement with the plaintiff and one Thomas Fant. At that time the principals of Pollard owned an undivided one-half interest in certain mining claims known as above indicated, and Fant the other, and the agreement reciting that on that day Fant had conveyed his interest to his co-owner, so that the latter now had the whole, stipulated that the whole should be duly conveyed to Fant and the plaintiff on the payment of a sum named by them to the other within a year from the date of the instrument. The understanding was that Fant and Connelly were to remain at the diggings and work the purchase money out of them and these persons went into possession and started to work as designed, but the claims not paying aoything over expenses the plaintiff abandoned them about March, 1857, and went to Nevada to live, declaring the claims would not pay and that he would have nothing more to do with them. At this time nothing had been paid by Fant and the plaintiff, or either of them, of the amount called for in the agreement.
    After the plaintiff left the diggings Fant continued there, working them, and himself alone paid the money called for, most of it after June 20. 1857. There was no evidence of collusion between Fant and Pollard, or his principals, and it did not appear that the plaintiff ever had demanded a conveyance from Pollard, or the Shady Creek Company or an accounting from them or either of them, or from Fant. The court below made its findings virtually as above and gave judgment for the defendants.
    F. D. Dunn for appellant; T. B. McFarland for respondents.
   COPE, J.

— The findings of the court are fully sustained by the evidence. The plaintiff is in no situation to call for an enforcement of his contract with the defendants. It is clear that he has failed to perform his part of the agreement, and there is no principle of equity upon which the defendants can be compelled to perform theirs.

The judgment is affirmed.

I concur: Field, C. J.  