I concur in the result upon the ground that, even if the alleged breach had been properly pleaded, it would not have been a good defense to the action brought by the Young Company, since the agreement to return the drums was an independent stipulation and not a condition precedent to the agreement to deliver oil of a certain grade. The ease is governed by the rule laid down in Proprietors of Mill Dam Foundery v. Hovey, 21 Pick. 417, 437-439; Cadwell v. Blake, 6 Gray, 402; Boston Blower Co. v. Brown, 149 Mass. 421, 426, 21 N. E. 883; Cox v. Wiley, 183 Mass. 410, 67 N. E. 367; American Emigrant Co. v. County of Adams, 100 U. S. 61, 25 L. Ed. 563; Ainesworth Coal & Iron Co. v. Trafikaktiedolaget Grangesberg Oxelosund (C. C. A.) 287 F. 291, 295; Central Appalachian Co. v. Buchanan (C. C. A.) 73 F. 1006; Morrison v. Galloway, 2 Har. & J. (Md.) 461, 467; Boone v. Eyre, 1 H. Bl. 273 (Footnote); Kauffman v. Raeder (C. C. A.) 108 F. 171, 54 L. R. A. 247; Susswein v. Pennsylvania Steel Co. (C. C.) 184 F. 102.
I do not agree that the case of Sipley v. Stickney was decided on the grounds set forth in the opinion, though it might well have been; and hence, even if this were a Massachusetts contract, that case should not control this, especially in view of the cases above cited.
The cases on “substantial performance” are not relevant, and a citation of them confuses the issue.