It is not necessary to go further than the complaint to see that this judgment cannot stand. The sole allegations are that plaintiff entered into a contract "with .'the defendant which is annexed to the complaint and which provides for the acceptance by the defendant of 100,006 pails at $35 per 1,000, the entire lot to be taken within six months time from first shipment and in quantities of not less than 15,000 pails at any one time; that in accordance with said agreement plaintiff delivered to defendant 10,000 of said pails at the price agreed upon, but that defendant absolutely refused and still refuses to cany out the terms of his agreement to the plaintiff’s damage, $1,000. Upon the very plainest principles of pleading this complaint was insufficient. The promises of the defendant to accept, and the agreement of plaintiff to deliver, were concurrent and mutual and neither party can recover without alleging and proving performance or tender of performance on his own part. Pope v. Terre Haute Car & Mf’g. Co., 107 N. Y. 61. The plaintiff is not relieved from the obligation of alleging performance or tender on his own part, by reason of the allegation of defendant’s refusal to fulfill because he does not show wherein that refusal consisted. It is not alleged that defendant refused to accept 90,000 or any other number of pails, but merely that he refused to fulfill the contract which might have consisted in a refusal to pay for what had been delivered and in any aspect the mere allegation that the defendant “ refuses to carry out the terms of his agreement” is a legal conclusion and not the statement of a fact. Van Schaick v. Winne, 16 Barb. 89.
Dugeo and MacLeax, JJ., concur.
Judgment reversed and new trial granted,, with costs to appellant to abide event.