Action upon a promissory note in these words: “ Traer, Iowa, October 10th A. D. 1872. “ In consideration of the hjiilding of the Western Division of the Burlington, Cedar Rapids & Minnesota Railway, from the city of Yinton westerly, and the opening of Main street in Traer within 60 days from date, and for value received, I promise to pay to said railway company or order one hundred dollars, at the company’s office, two years after the iron is laid, and the cars running upon…
Decided 1877-04-20
Beck, J.
¶11. contract: préoedcnt: promissory note. The question involved in this case, whether the building of the railroad and opening of the street within sixty days was a condition precedent to defendant’s obligation, is to be determined with but little aid 7, . .... ... from rules recognized by the authorities. I he case, as most others wherein a like question is involved, must be determined upon its own peculiar facts. We are of the opinion that plaintiff’s obligation to build the road and open the street within sixty days after the date of the instrument is not to be regarded as a condition precedent to defendant’s contract. Such an intention of the parties, it seems to us, is clearly indicated in the fact that a time certain is not provided for payment by defendant, but it is fixed at two years after the iron is laid and the cars running upon the road. This, to our mind, indicates that the condition to build the road in sixty days, and the agreement of plaintiff to pay within two years after the building, are independent covenants. The time of the performance by defendant was not made dependent upon the time agreed upon for the building of the road but upon the time it should be actually completed. The parties must have intended the building of the road, without regard to the time specified for its completion, to constitute the condition which should determine defendant’s liability. ’ No words are to be found in the contract indicating a different intention. The case is not unlike Davis & Co. v. Cobban, 39 Iowa, 392.
