Any material defect in his performance will defeat his right to recover on the contract and the defendant has no legal obligation to pay any reciprocal dependent sums until it be established by the plaintiff that his work was done as the contract required. See e.g., Kelly v. Webb, 27 Tex. 368 (1864); Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065 (Tex. 1940); Jessen v. Le Van, 161 S.W.2d 585 (Tex.Civ.App. 1942, no writ); Howard v. Sears, 196 S.W.2d 105 (Tex.Civ.App. 1946, writ ref'd n.r.e.). In the present case, the implied provision for reasonable skill and diligence was as much a part of the Engineer's contract as any express provision contained therein, such as his obligation to supply the plans and specifications in issue.
He argues that this evidence should have been admitted to show a prior breach of the joint venture agreement by Spiritas. In support of this contention, he cites cases such as Gulf Pipe Line Co . v. Nearen, 135 Tex. 50, 138 S.W.2d 1065, 1068 (1940), and Jessen v . LeVan, 161 S.W.2d 585, 586 (Tex.Civ.App.--El Paso 1942, no writ). These decisions concern the breach of a condition precedent or a concurrent condition.
Appellant does not deny that he defaulted and first breached the contract by failing to pay the $3,000.00 judgment. The general rule is that in order for a plaintiff to have a right of action to enforce performance of the terms of a written contract evidencing concurrent and mutual obligations, he must plead and prove his compliance with his obligations under the contract. 13 Tex.Jur.2d sec. 376, p. 654; Jessen v. Le Van, 161 S.W.2d 585 (Tex.Civ.App., El Paso, 1942, n.w.h.); Federal Sign Company of Texas v. Fort Worth Motors, 314 S.W.2d 878 (Tex.Civ.App., Fort Worth, 1958, n.w.h.). This he failed to do.
Under such circumstances its prior breach without justification precludes its recovery and discharges appellant from any further obligation under the contract. 13 Tex.Jur.2d 568, Contracts, Sec. 311; Jessen v. Le Van, 161 S.W.2d 585 (Tex.Civ.App.-El Paso 1942, no writ); Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065 (Tex.Comm.App. 1940). Appellee also alleged a cause of action in quantum meruit.
As a general rule, a party to an indivisible contract cannot enforce it or recover damages for its breach unless he shows that he has performed the obligations imposed upon him, or that he offered to perform them and was able to do so, or unless he shows some valid excuse for failure to perform. 10 T.J. p. 395, sec. 224; Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065; Smith v. Fort, Tex.Civ.App. 58 S.W.2d 1080; Jessen v. Le Van, Tex.Civ.App. 161 S.W.2d 585; Rigsby v. Boone County State Bank, Tex.Civ.App. 241 S.W. 207; Frankfurt Finance Co. v. Treadaway, Tex.Civ.App. 159 S.W.2d 514; Investors' Utility Corporation v. Challa-combe, Tex. Civ. App. 39 S.W.2d 175. Therefore, the judgment of the trial court is hereby reversed and judgment rendered cancelling the contract, and judgment is also rendered for the defendant and against the plaintiff in the sum of $1450.00, representing the amount the defendant has heretofore paid to the plaintiff upon said contract. It is the further judgment of this court that the defendant deliver and transfer to the plaintiff the corporate stock it received from him under said contract.