Billings

The performance was a condition precedent to the right to demand and enforce payment. As the agreement was not performed, there is no right of action on the note. (Civil Code, sec. 1439; Smith v. Brady, 17 N. Y. 173 ; Barron v. Frink, 30 Cal. 488 .)

As the consideration for the note was the agreement to construct the canal within the time limited, and as it was never performed, and no part of the work done, nor any part of the contract was done after either of the notes was given, the consideration failed. (Knight v. Knight, 28 Ga. 165 ; Simonton v. Steele, 1 Ala. 357 ; Plate v. Vega, 31 Cal. 383 ; Bissenger v. Guiteman, 6 Heisk. 277 ; Boynton v. Twitly, 53 Ga. 214 ; Stacey v. Kemp, 97 Mass. 166 ; Harrington v. Stratton, 22 Pick. 510 .)

As the note in suit was given in lieu of the first note, and upon the same and no other consideration, it is affected by the same infirmities. (1 Parsons on Motes and Bills, 178 ; Hill v. Buckminster, 5 Pick. 391 ; Copp v. Sawyer, 6 N. H. 386; Clark v. Didreck, 31 Md. 153 .)

S. G. Harper, for the Respondent.

The note must be interpreted by its own terms. If it was a promise to pay on the happening of so uncertain an event as the completion of…