delivered the opinion of the court.
The plaintiff at the trial having introduced his testimony and rested, defendant’s counsel moved the court for a judgment of nonsuit on the ground that the first cause of action stated in the complaint is based on an express contract, all the conditions of which, it is alleged, plaintiff fully performed, while the testimony shows a nonperformance, to excuse which he relies on the defendant’s alleged breach of the contract without alleging such waiver. The motion was overruled and an exception saved, and it is contended that the court erred in refusing to grant the non-suit. It is argued by plaintiff’s counsel, however, that defendant’s tender to plaintiff of the sum of $60.40 in settlement of his demand is equivalent to an admission of the terms of the contract, and of its breach as alleged, thus leaving for determination only the amount of damages to which plaintiff was entitled. The legal principles insisted upon will be considered in'their inverse order.
1. The statute regulating offers to compromise disputed claims provides that the defendant may at any time before trial serve upon the plaintiff an offer to allow judgment to be given against him for the sum therein specified. If the offer is not accepted within three days, it shall be deemed.withdrawn, and evidence thereof shall not be received on the trial: B. & C. Comp. § 532. The defendant’s offer was not accepted by plaintiff, and his refusal in this respect renders the proposed compro-' mise as though it had never been made. It would not conduce *104bo the speedy settlement of actions if. a plaintiff could decline such an offer until after lie had secured a judgment, and on appeal urge the proposal as an admission of the cause of action as alleged, leaving for consideration only the sum claimed to be due him. A plaintiff ought not to be permitted thus to speculate on the outcome of a trial, and, whatever the rule may have been at common law in relation to the effect of a tender, our statute has wisely regulated the matter by providing that, if the offer is not accepted within three days, it shall be deemed withdrawn. , . i.
2. It is not alleged in the first cause of action stated in the complaint what quantity of logs defendant was to cut, or plaintiff to prepare and haul, so that the averment that the latter fully performed all the conditions of the contract to be kept by him is not inconsistent therewith. The plaintiff’s theory of the case, as disclosed by the entire complaint, is that he hauled all the logs that were cut, but, in consequence of defendant’s failure to keep the skidroad free from obstructions, he was damaged in the sum of $200. As evidence of what the bill of exceptions shows, the court, alluding to the testimony given on this branch of the case, in charging the jury, said, “It is admitted by the plaintiff that there was a failure to deliver all the logs he agreed to deliver.” “The rule,” says Mr. Justice Bean in Long Creek Build. Assoc. v. State Ins. Co., 29 Or. 569 (46 Pac. 366), “is well settled that a plaintiff cannot plead performance of a condition precedent, and recover under proof of a waiver of such performance.” In Hannan v. Greenfield, 36 Or. 97 (58 Pac. 888), it was held that the proofs must follow the allegations of a complaint, and that. the averment that plaintiff had performed all the conditions of a contract precedent to his right to maintain an action could not be upheld on the introduction of evidence showing that his failure to perform his part of the contract resulted from a waiver thereof by the defendant. In Durkee v. Carr, 38 Or. 189 (63 Pac. 117), in discussing this subject, it is said: “The rules of the common law respecting the allegation of the performance of a condition precedent have been changed by our statute so as to permit a party to plead generally *105that he had duly performed all the conditions imposed upon him by his agreement: Hill’s Ann. Laws 1892, § 87. But when he relies upon a waiver of such performance by the adverse party, he should aver that fact, so as to let in evidence thereof.” If the defendant failed promptly to remove the logs from the skid-way, so that plaintiff was prevented from performing his part of the contract, the latter, upon an averment and a proof of such neglect, was entitled to compensation for the labor performed, and also for the damages resulting from the defendant’s breach of the agreement. The testimony introduced by plaintiff did not sustain the allegations of his complaint, and, there having been a failure of proof of his theory of the case, the court erred in refusing to grant a judgment of nonsuit.
The defendant’s counsel, invoking the rule announced in Gardner v. McWilliams, 42 Or. 14 (69 Pac. 915), insist that, because the second count of the complaint repeats the averments of the first by reference thereto, it does not state facts sufficient to constitute a cause of action. We do not think it necessary at this time to determine the question presented, for, if the complaint be defective in not specifically alleging the facts relied on, it can be amended in this particular as well as in that to which attention has been called.
3. After the verdict was rendered, defendant’s counsel filed a motion for a new trial, which, among other reasons therefor, states that the testimony disclosed that plaintiff had a partner in the work performed for defendant, who was not made a party. This fact appears from the testimony given by plaintiff on his cross-examination. At the time it was disclosed, defendant’s counsel was aware of the existence of the partnership relation, and, if-he desired to take advantage of the defect of parties, he should then have interposed some objection thereto; but, not having done so, he ought not to be permitted to speculate on the probability of a favorable verdict, and, if found to be adverse, seek to set it aside on that ground. He had an opportunity to raise this question when it arose, but, not having made any objection at tbjat time, it was too late to do so when the motion for a new *106trial was interposed. The defect of parties, however, can be cured at another trial by a proper amendment of the complaint.
The judgment is reversed and the cause remanded for such further, proceedings as may be' necessary, not inconsistent with this opinion. Reversed.