I concur in the result reached in the foregoing opinion, but not in the reasoning on which it is based.
The subscription or contract signed by the defendant was conditioned that “ Said bridge to • be at least equal in material, workmanship and accommodation, to the iron bridge across the river at Park Avenue.” The petition did not aver that tlie bridge erected by the plaintiff was equal to the Park Avenue bridge. Unless the defendant waived the aforesaid condition in the contract the plaintiff cannot recover. No demurrer was filed, nor did the defendant take advantage of the sufficiency of the petition. in the answer as is contemplated in Code, § 2650, as was done in the Edgerly case, 43 Iowa, 587.
The line of defense adopted by the defendant seems to have been to strictly confine the plaintiff to the ease made in the petition and to resist the introduction of any evidence tending to show a liability unless it tended to establish the case made in the petition. This he could well do. For instance the defendant could properly insist that no evidence *569should be introduced tending to show that the bridge constructed by the plaintiff was equal to the Part Avenue bridge. .The court, therefore, rightly excluded all evidence tending to show performance of the conditions of the sub-' scription.
Instead of amending the plaintiff insisted on going to the jury, and the. court properly instructed the jury that the plaintiff could not recover for the reason that no evidence had been introduced which tended to show a liability.'
At this stage of the case the plaintiff might have moved in arrest of judgment because of the non-averment of a material fact (Code, § § 2812-3), but this was not done.
. It is evident the plaintiff sought to recover: firsts because the bridge had been accepted by the engineer as provided in the Jones contract. But the defendant was not bound under such contract unless he had waived the conditions of the subscription. If this was true the petition should have so averred. If this had been the case then evidence of such waivei would have been admissible. The second ground upon which a recovery is asked is that the defendant ratified the Jones contract. What is meant by counsel as to such ratification is uncertain. But the only evidence tending to show such ratification was after the bridge ivas completed. There, are serious doubts whether such ratification was binding on the defendant, because there was no consideration for the promise claimed to have been made.
The defendant might have ratified the Jones contract, that is, recognized that the bridge had been constructed thereunder, and still, failed to waive the conditions upon which he agreed to pay. In other words, the plaintiff must in order to recover aver and establish that the defendant waived the conditions of the subscription upon a sufficient consideration. I do not understand that the plaintiff offered to introduce any evidence so tending.