The parties entered into a written contract to establish a public journal, the success of which was úncerr tain, depending upon popular favor. It is fair to suppose that each party intended and endeavored to perform what was promised, and that the failure was accidental. It is *167conceded by the defendants that they made the first breach in not furnishing the number of paid up subscribers by the 1st of October, as promised, and they do not controvert the position that if the plaintiff had abided by the contract he could have sued upon it and recovered of the defendants for their breach, but they deny the plaintiff’s right to sue upon the contract, because he elected to rescind it and put it beyond his power to perform, it by selling out the enterprise. And so the defendants say, that just as both made the contract, so both broke it, and therefore neither can sue upon it. So His Honor held. And we are of the same ■opinion.
The position which the plaintiff endeavored to support is that the covenants are independent, and that he can maintain an action against the defendants for their breach without alleging performance or readiness to perform on his part. But that is not so. The contract has but one subject matter, the establishment of the “journal” to which both parties were to contribute, and neither can sue the other upon the contract without alleging performance on his part. What the rights of the parties may be in an action on the common counts is not before us. There is no •error.