In order to enable plaintiff to recover, it must appear that it has strictly fulfilled all the conditions it undertook to fulfill to the grantees of the franchise, and whichsame conditions it undertook, by the contract sued on, also to fulfill to the subscribers.
Either the performance of the " conditions" on the part of the company is the ground of respondent's liability, or the whole subscription is without consideration, and cannot be enforced at all. (Trustees of Hamilton College v. Stewart, 1 Comstock, 581; L'Amoureux v. Gould, 3 Seld. 349; 1 Chitty Cont. 15; Barnes v. Perine , 12 N.Y. 18; Trustees Bridgewater Academy v. Gilbert, 2 Pick. 579.)
OPINION By the Court:
As we construe the contract, Butler was to pay ten per cent. upon the beginning of the work; an additional ten per cent. when the line of the road shall have progressed the distance of four blocks westerly from Polk street; an additional ten per cent. when the line shall have been completed opposite the land of Butler, and the remainder in monthly installments of ten per cent. thereafter.
In fact, the foregoing is substantially the language of the contract itself.
The covenant to make monthly payments, after the first three payments, was independent--at least so far as the installments might become due prior to the expiration of the six months. The payment of money cannot be made dependent on the performance by the other party of a condition, which, by the very terms of the contract, is not to be performed, or may not be performed until after the date at which the money is to be paid.
Courts are disinclined, as was observed by the Court of Appeals of New York (20 N.Y. 432), to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed. The reason of this disinclination is that such a construction prevents the court from dealing out justice to the parties according to the equities of the case. The case at bar affords an instance of the injustice which would be wrought by such a construction of the contract of these parties. A road of the character and description contemplated by the parties, had, in fact, been built and operated before the action was brought; the defense relied on is, that it was not completed within the six months mentioned in the contract--a short delay upon the part of the company having occurred from fortuitous circumstances apparently beyond its control. If the defendant has sustained damages by the delay, he is entitled to recoup to that extent against the claim of the plaintiff.
Judgment reversed, and cause remanded for a new trial.