This action was brought to recover the sum of $1,006.85 upon a promissory note dated June 13, 1906, ' less the sum of $503.42, which it is alleged was paid thereon on the eighteenth day of September, 1906. The ease was tried before the court, and findings filed, upon which judgment was entered for the defendant.

The defendant in its answer claimed that it had been released from the payment of the full amount of said promissory note by virtue of an agreement of compromise, under the terms of which it was to pay the plaintiff the sum of $503.42 in full payment of said promissory note, and that said compromise agreement had been fully performed on its part. The court found in relation to the said compromise agreement as follows:

It appears from the above findings that under the express agreement of the parties time was of the essence of the contract, and that the parties agreed that, unless the full amount was paid as provided for in the said composition agreement, then the said agreement should be void, and any payment that had been made thereunder should be deemed merely a payment by the defendant to plaintiff on account of the said promissory note. The court finds—and it is so stated in the agreement—that interest at the rate of six per cent from June 13, 1906, was to be paid upon said $503.42. It further appears that the interest was not paid, and that the defendant promised, at the request of plaintiff, to pay it the next day, but did not do so. It further appears that on the fifteenth day of November, after"the expiration of the period of ninety days, the plaintiff again demanded payment of the balance due on said promissory note, with interest, but the defendant neglected and refused to pay the same.

It is elementary that the defendant, in order to have availed himself of the composition agreement, and of the payment of the amount justly due to the plaintiff, must have complied strictly with the terms of the contract under which it was agreed that it should be released from a part of its indebtedness. Under the composition agreement, if the $503.42, and the interest thereon, had been paid within the times provided for in the agreement, then the defendant would have been released; but the amount was not paid, and it is no answer to the proposition that only the interest remained unpaid. The court cannot stop to speculate in regard to the amount—■ whether only a few dollars or half the composition agreement or three-fourths of it should release the defendant. It could only be released by paying the amount in the manner and at the time and according to the agreement by which plaintiff agreed that it should be released.

Nor was it necessary for the plaintiff to return any portion of the $503.42 paid to it. That was, by the express agreement of the parties, to be deemed a payment on account in case the composition agreement was not fully kept and performed. It is not for the court to make contracts for the parties; nor to allow the defendant to be relieved because it came very nearly complying with its contract. The contract was not performed, and the judgment should have been for the plaintiff for the amount due upon the promissory note, less the payment, to be credited as of the date when it was made.

The judgment is reversed, with directions to the trial court to enter judgment upon the findings in favor of plaintiff in accordance with the views herein expressed.

Kerrigan, J., and Hall, J., concurred.