OPINION OP THE COURT.
ROBERTS, J.(after stating the facts as above). Appellant argues that the court erred in sustaining the demurrer to the evidence offered by him to prove the alleged oral agreement between plaintiff and defendant, because said evidence was admissible and did not add ■to, contradict, change, or vary the terms of the written contract executed between said parties contemporaneously with the' making of said oral agreement. This question need not be determined, however, because the judgment is sustainable regardless of whether the court was right or wrong in sustaining the demurrer. The court held that the appellant, assuming that the evidence was admissible, had not proved the material allegations of his answer or counterclaim; hence had no cause of action against appellee. Treating the evidence of appellant and his witnesses as to the alleged contem-poreaneous parol agreement in its most favorable light, it was to the effect that appellant agreed to give-as security for a loan of $16,000 a mortgage on 500 or 600 head of cattle and 2,000 acres of land; that the loan secured by the cattle was to be for a period of six months. "When he made application for the loan he offered only 300 head of cattle and 1,120 acres of land as security; hence did not comply with the terms of the said parol agreement, if one had been made. It is ele-' mentary that there can be no recovery for breach of contract in the absence of allegations and proof that the party seeking to recover has performed all the conditions precedent of the contract by him to be performed, or has tendered performance of the same. Elliott on Evidence, § 2098. Appellant having not only failed, but having refused to perform his part of the alleged oral agreement, was righ.tfu.lly denied a recovery on his counterclaim. Hence the action of the court in sustaining the motion to strike the evidence is tif no consequence.
For the reasons stated, the judgment will be affirmed; and it is so ordered.
Hanna, C. J., and Pabker, J., concur.