#### Louis Fendl and W. C. Virkus, copartners, trading as Fendl & Virkus, Defendants in Error, v. George J. Cooke Company, Plaintiff in Error.

Gen. No. 22,242.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.

Reversed.

Opinion filed April 10, 1917.

Statement of the Case.

Action by Louis Fendl and W. C. Yirkus, copartners, trading as Fendl & Yirkus, plaintiffs, against George J. Cooke Company, a corporation, defendant, to recover a deposit made under a written contract for the purchase of beer exclusively from defendant and for the installation of fixtures and plumbing in plaintiff’s saloon by defendant, and damages for the breach of such contract. From a judgment for plaintiffs for $275, defendant brings error.

John C. Slade, Robert J. Folonie and Hendrik Folonie, for plaintiff in error.

Coburn & Bentley, for defendants in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McDonald

delivered the opinion of the court.

*260Abstract of the Decision.

1. Contracts, § 387*—when evidence insufficient to show fulfill•ment of contract by saloon keeper for purchase of beer and use of bar fixtures. • In an action for the return of money deposited pursuant to a contract under which the defendant installed fixtures and plumbing in the plaintiffs’ saloon, and plaintiffs agreed to sell the defendant’s beer exclusively for a period of two years, and for damages sustained for breach of the contract, where the deposit money was to he returned to the plaintiffs with interest at the expiration of said two years in the event of a compliance with such contract, and it appeared that there were some objections to the fixtures furnished but that they were usable, and plaintiffs ordered the defendant to remove the fixtures and they did so, and plaintiffs discontinued doing business after the expiration of about six months after entering into the contract because of their failure to procure a license and not because of any breach of contract by the defendant, held that the fulfillment of the contract by the plaintiffs was a condition precedent to their right of recovery of the deposit, and that they failed to make such proof.

2. Contracts, § 294 * —when performance by plaintiffs is essential to recovery for breach. In an action to recover money deposited with the defendant, where such money was deposited under a contract providing that the same should he returned in the event that the plaintifs should, during the period specified, purchase the beer of the defendant exclusively during the period and in the quantity specified, held that the fulfillment of such contract by the plaintiffs was a' condition precedent to a right of recovery of such deposit and for damages for breach of the contract, and that the fact that the fixtures were defective could not be taken advantage of by the plaintiffs to strengthen their case.