McLaughlin

This is an action upon a promissory note for four hundred dollars, dated December 27, 1887, and payable four months after date, with interest from maturity.

The answer admits the making of the note, and that plaintiff is the owner thereof, and that no part of it has been paid, and then, by way of avoidance, alleges that on the day of its date, “the plaintiff and defendant made and entered into the following contract.” A copy of the contract is then set out, and in it twenty persons, the defendant being one of them, are named as parties of the first part, and the plaintiff is named as party of the second part. The substance of the contract is, that the parties of the first part, in consideration of the advantages to be derived by them from the extension and operation of a certain steam-dummy railroad, from a point named to another point named, agree to pay to the party of the second part the sum of money subscribed by them set opposite their names. Each of the sums is to be evidenced by two promissory notes of the subscriber, one payable two months after the date thereof, and when the grading is done and the iron is on the ground, and the other payable four -months after its date,…

I think the judgment should be affirmed. The note imports a consideration (Civ. Code, secs. 1614,1615), and the contract shows that the consideration for which it was given was “the advantages to be derived from the extension and operation of said railroad.”

Time was not expressly declared to be of the essence of the contract, and I do not think it can be fairly said that it was intended to be so. The note itself is an absolute promise to pay, and there is nothing in the contract to indicate that payment was to be made only on condition of strict performance. The road was completed in about three months after the time named for its completion, “ weather permitting.” The cause of the delay is not shown, but certainly the delay was not long.

I am unable to distinguish this case from the case in 50 California, 575. That was an action brought to recover a sum of money subscribed by the defendant therein to aid in the building of a street-railroad, under a contract which provided that the road should be completed in six months. It was nearly three months after the time *328 stipulated in the contract before the road was completed. It was held on appeal that, where property holders…