—The material amendments of the complaint relieve the question from being res ad/judicata by the former decision, which appears to have been made upon a pleading in some respects essentially different.
The objection, based upon the absence of an averment of the performance of the condition precedent, is well taken. Upon the acceptance, by defendant, of the plaintiff’s proposal, the plaintiff was required to pay the sum named and give the notes. There is no allegation, either of this having been done, or of a tender, or of any acts of the parties establishing a waiver.
The second point of the learned counsel for the plaintiff would be unanswerable, if the action was brought for the violation of the agreement therein stated. But it is founded upon the contract set forth in the complaint which is quite different in calling for the cash payment and notes immediately upon the acceptance by the defendant of the plaintiff’s proposition. In view of this conclusion the other points have not been examined.
Judgment for the defendants, with leave to the plaintiff to amend upon payment of costs.