Albert A. Newman, Defendant in Error, v. Newman Clock Company, Plaintiff in Error.

Gen. No. 19,193.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed.

Opinion filed February 3, 1915.

Rehearing denied February 18, 1915.

Statement of the Case.

Action by Albert A. Newman against Newman Clock Company, a corporation, to recover monthly instalments of salary due under a written contract of employment. From a judgment on a directed verdict in favor of plaintiff for seven hundred and fifty dollars, defendant brings error.

Amos W. Marston, for plaintiff in error.

Elmer E. Jackson and Newman, Levinson, Becker & Cleveland, for defendant in error.

*344Abstract of the Decision.

1. Contracts, § 294 * —performance as condition precedent to recovery on. Where a plaintiff causes the record to show that he elects to stand by his amended and supplemental bill and permits the same to be dismissed for want of jurisdiction at his costs and appeals on the record to reverse the order appealed from, it constitutes such a breach of his covenant to “forthwith discontinue” all suits against defendant as to preclude his recovery for salary on a written contract of employment containing such covenant for discontinuance of all suits.

2. Contracts, § 294*—sufficiency of performance to assert rights. Where under a written contract of employment it is agreed that all suits brought by plaintiff against a. defendant corporation and its directors, or any of them, and by defendant corporation against said plaintiff shall be forthwith- discontinued without costs to either party as against the other, plaintiff will not be heard to'say that his appeal from an order of the Federal courts was to permit a proper adjudication as to the disposition of funds in the hands of a receiver, in an action by him to recover unpaid instalments of his salary.