By the Court,
Bronson, J.Without noticing other points which arise out of these pleadings, it is very evident that the plaintiff is unwilling to make, and go to trial on an ‘averment that he has per- [ *449 ] formed his part of the contract to the satisfaction of the building committee. It seems probable that the defendant, as, a builder; had .contracted to furnish the materials and put up the walls qf this -public building, to the satisfaction of a committee appointed by the founders of the charity ; and as he was bound himself to submit to the decision of an umpire, he adopted the prudent course of inserting a like stipulation when he contracted with third persons for materials or portions of the work. But however that may be, the plaintiff had not agreed to furnish and deliver granite of a particular quality and description, and to execute the work in a specified manner, but he has also stipulated that the whole should be done and completed to the entire satisfaction of the building committee. He is bound by his contract. It is not enough for him to say, that he has performed the agreement in other respects, without also alleging, that he has done it to the satisfaction of the arbiters agreed on between the parties. Worsley v. *449Wood, 6 T. R. 710. Delaware & H. Canal v. Dubois, 15 Wendell, 89, 90, 92. Morgan v. Birnie, 9 Bing. 672. The U. States v. Robeson, 9 Peters, 319. 1 Chit. Pl. 312.
The defendant does not set up that part of the covenant whiclUrequires the work to be done to 7m's satisfaction; and in omitting to do so, he has actedwery properly. As to that, it would probably be enough for the plaintiff to aver, that the work was in all other respects completed in pursuance of the contract; for if the defendant was not satisfied with such a performance, it would be his own fault; and, as a general rule, a party cannot insist on a condition precedent when he has himself defeated a strict performance. But when parties fix on an umpire and agree to abide his decision, neither of them, without the consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury. This doctrine was not much controverted on the argument. But it was insisted, that the stipulation that the work should be done to the satisfaction of the committee, only applied as a condition precedent to the last instalment of $1600, to be paid when the whole work was [ *450 ] completed ; and that in *t-his action for the first instalment of $1100, the plaintiff might recover without averring performance. This position cannot be maintained. The plaintiff, in the first place, covenants to furnish all the granite for the building, of a certain quality and description, and the whole to be done and completed to the satisfaction of the committee. The defendant then agrees, that for the true and faithful performance by the plaintiff, he will pay $10,000, in specified instalments as the building progresses, beginning with $1100, when the ashlar to the top of the sill course should be delivered, and ending with the last instalment of $1600, when the whole should be completed to the satisfaction of the committee. It will violate no rule of grammar, and is but a reasonable construction of the covenant, to say, the concluding w'ords apply to the whole stipulation for payment, and that performance pro tanto by the plaintiff is an es. sential on suing for any one of the prior, as it would be in a suit for the last instalment. Neither party could have intended that the defendant should pay for materials which would not answer his purpose ; nor did they design to fix on a different standard of performance in reference to the different stages in the progress of the work.
But we must look also to the commencement, as well as the conclusion, of the defendant’s covenant. It is/or the true and faithful performance by the plaintiff, that the defendant agrees to pay. These words alone would make performance by the plaintiff a condition precedent to the payment of the money. 1 Chit. Pl. 312, and cases cited. The plaintiff relies on Terry v. Duntze, 2 H. Black. 389. But that case was denied to be law, and two cases in this court, resting on the authority of that decision, were expressly *450overruled in Cunningham v. Morrell, 10 Johns. R. 203. The doctrine of latter case has been followed ever since, and is decisive against the plaintiff.
Judgment for defendant.