The parties entered into a written contract to establish a public journal, the success of which was úncerr tain, depending upon popular favor. It is fair to suppose that each party intended and endeavored to perform what was promised, and that the failure was accidental. It is *167conceded by the defendants that they made the first breach in not furnishing the number of paid up subscribers by the 1st of October, as promised, and they do not controvert the position that if the plaintiff had abided by the contract he could have sued upon it and recovered of the defendants for their breach, but they deny the plaintiff’s right to sue upon the contract, because he elected to rescind it and put it beyond his power to perform, it by selling out the enterprise. And so the defendants say, that just as both made the contract, so both broke it, and therefore neither can sue upon it. So His Honor held. And we are of the same ■opinion.

The position which the plaintiff endeavored to support is that the covenants are independent, and that he can maintain an action against the defendants for their breach without alleging performance or readiness to perform on his part. But that is not so. The contract has but one subject matter, the establishment of the “journal” to which both parties were to contribute, and neither can sue the other upon the contract without alleging performance on his part. What the rights of the parties may be in an action on the common counts is not before us. There is no •error.

Dissenting. I do not concur in the opinion that the plaintiff is not entitled io recover. It is true that under the former system of pleading and practice, technical •distinctions are made between declarations on special contracts and on the common counts, under which the nonsuit in this case would be required. But, as I understand, these technicalities are not recognized in the more rational and simple system of our present Code. The Constitution ■adopted in 1868 abolishes the distinction between actions at law and suits in equity, and the forms of all such actions and suits, and substitutes therefor a single form of action. Art. IV, § 1.

*168The complaint which supercedes the declaration is required to contain only a plain and concise statement of the-fads constituting a cause of action, without unnecessary repetition, each material allegation being numbered. C. C. P. § 93 (2). The judgment where there is an answer may be for any relief consistent with the case made by the complaint and embraced within the issue. § 219.

It is the apparent purpose of the new system, while simplifying the method of procedure, to afford any relief to which a plaintiff may be entitled upon the facts set out in his complaint, although misconceived and not specially demanded in his prayer. In the present case the essential facts are contained in the pleadings, and whether the remedy is on the special contract or on what are called the-common counts, it ought not to be denied. It is obvious-that the funds which were to be furnished by the defendants through the subscription list were relied on by the plaintiff, and necessary io enable him to carry out the-projected enterprise. Through their failure to perform their undertaking, the publication of the paper became impracticable, and its suspension and a sale of the materials were a necessity forced upon the plaintiff. Regarding this as a rescisión of the contract, it resulted from the-wrongful act of the defendants-, involving loss to the plaintiff, and excused him from further fruitless efforts to continue the publication, and gave him a right to compensation-against the defendants for damages caused by their violation of their engagements. The cases cited and commented' on in the argument of the defendants’ counsel, all proceed upon the distinctions in the form of the remedy between-actions on special contracts and those implied by law, and-do not apply to the present mode of legal procedure.

No error.

Per Curiam. Judgment affirmed*