Action on two promissory notes made by defendant to James McLoughlin, each for five hundred dollars, with interest after maturity at rate of one per cent per month, and assigned by McLoughlin to plaintiff.

The judgment was in favor of plaintiff for the full amount of principal and interest of both notes. Defendant appeals from the judgment, and from an order denying his motion for a new trial.

*572 The notes were made to secure payment of defendant’s subscription of one thousand dollars, to be paid to McLoughlin in consideration of the construction of a proposed street railroad on a specified route passing through defendant’s land. The following is a copy of the subscription contract:

The findings of fact bearing on the points made by appellant are as follows:

It will be observed that the road was. not completed within four months after the date of the contract, as provided therein, nor until the 8th of August,-1888. As to the cause of this delay, the court found: 1. That the contract was not fully executed by all the parties of the first part until January 24, 1888, when the notes were deposited with Bonebrake; 2. That the parties of the first part failed to procure the right of way for said road as provided in the contract; and 3. That the chief cause of the delay was that the rails and other materials for the road, while being transported by railroad, were delayed by a washout of the track. That these delays were unavoidable and without fault upon the part of McLoughlin; and, furthermore, that the defendant suffered no injury or damage by reason of the delay.

1. Appellant contends that defendant’s notes were never properly delivered, because defendant, on May 7, 1888, two days, before his departure for Europe, notified Bonebrake that he had rescinded the subscription. contract, on the ground that the terms thereof had not been complied with by McLoughlin.

Conceding that the notes should "be read and construed in the light of the subscription contract, which, by the way, had not 'been deposited with, or seen by, Bonebrake, it will hardly be contended that defendant could have rescinded that contract by mere notice to Bonebrake that he had rescinded it, without any notice *577 of such rescission, or of his intention to rescind, to MeLoughlin. It is not pretended that defendant ever notified McLoughlin of his intention to rescind, or of any-objection to the delay of the work, until after the road-had been completed, and after both notes had been delivered by Bonebrake pursuant to the written order of defendant’s agent, Milner. Nor does it appear that Mc-Loughlin had any knowledge of defendant’s notice to Bonebrake that he had rescinded the contract until June 7, 1888, when the work had been so far advanced as to entitle McLoughlin to delivery of the two months’ note, and even then only by inference from the facts that Bonebrake then refused to deliver the two months’ note, and probably then informed plaintiff of his reason for the refusal; for there is no express testimony that Bonebrake ever informed McLoughlin of defendant’s notice of rescission. Nor did the defendant pretend that his notice to Bonebrake effected a rescission, or was more than mere notice to Bonebrake of a rescission already effected, as it purported to be. When and by what means had the alleged rescission been effected ? To this inquiry there is no response in the record.

Another alleged reason why the notes were not properly delivered is that the time within which the road was to be completed is of the essence of the contract, and, therefore, that the completion of the road within that time was a condition precedent to the right of McLoughlin to a delivery to him of the notes. But nothing of this is expressed in the contract, nor do I think it is implied. The only conditions upon which payment of the subscriptions were to be made were: “ One-half, represented by two months’ notes, when the grading is done and the iron is on the ground; the balance, represented by four months’ notes, on the completion of the road on the first day of its operation.” It was surely and necessarily intended that the two months’ notes were to be delivered before the road was completed. Then again the written instructions to Bonebrake as to the conditions upon which he should deliver the notes agreed *578 upon by the parties, and deposited with the notes, correspond with the conditions named in the contract, as follows: “The above notes [list of all the notes] due in two months from date of same, to be delivered to James McLoughlin upon the certificate of Geo. E. Pillsbury that the- grading for the road is finished to Wilcox avenue in Hollywood, and that the iron for same is on the ground, and the four months’ notes to be delivered to said McLoughlin upon certificate of said Pillsbury that the road is finished, and cars running to Wilcox avenue in -. Hollywood.” (Fob 61.) The subscription contract was not deposited with Bonebrake, nor did he know its contents until after delivery of all the notes in strict obedience to the above instructions, and to the following written order indorsed on said instructions:

These conditions precedent, expressly enumerated as such in the contract and in the instructions to Bone-brake, exclude all others which are not expressly made such; and, since the provision in the subscription contract that the road “ shall be extended from its present terminus to the West line of east half of northeast quarter of section 10 .... by the route above designated, within four months, weather permitting,” is not expressly made a condition precedent, nor declared to be of the essence of the contract, it should not be so construed. The case of McLaughlin v. Clausen, 85 Cal. 822 , cited by appellant, is not in point; for, though that action was upon one of the notes made pursuant to- the subscription contract in question here, this court said: “It does not present the mere question whether the stipulation that the road should be completed and running within a certain time was of the essence of the *579 contract”; and this question was not considered in that case, though it was there held that “ the completion of the road was, by the terms of the contract, made an absolute condition precedent, and, until such completion, the note could not be delivered or take effect.” In that case the question thus decided arose upon a general demurrer to the answer, in which it was alleged that the road was not completed when the note was delivered.

But even if it be conceded in this case that time was essential, and that completion of the road within the time mentioned was a condition precedent to the delivery of the notes, yet the defendant was at liberty to waive the condition, and I think he did waive it by his written order on Bonebrake to deliver the notes given by his duly authorized agent, Milner, as found by the court. No doubt that Milner was authorized to order the notes to be delivered, and that the construction of his written power of attorney from defendant by the court was correct in this respect. The only matter urged against the legitimate effect of this order by Milner is his testimony that at the time he gave the order he “was not aware of the fact that Mr. Weid had given written instructions to Major Bonebrake not to deliver those notes. When Mr. Weid left for Europe he gave no special instructions in regard to those notes, but did give me special instructions in regard to the managing of his ranch, and so on. He mentioned, in a general way, that he had given some notes to Mr. McLoughlin in connection with the building of this road, without any further instructions about them.” This shows no material mistake of either the agent or principal. The agent did not exceed his authority, and did only what his principal was plainly obligated to do by his contract; besides, under the pleadings, the testimony of Milner was wholly immaterial and irrelevant. The answer simply denies that the notes were ever delivered by defendant to plaintiff, and alleges that they were delivered by Bonebrake before the road was com *580 pleted, “in contravention of the terms of said contract.” There is, in the answer, no' averment of mistake or fraud.

2. The only other point made by appellant is that there was a failure or partial failure of consideration for the notes; and counsel for appellant says the question of failure of consideration “resolves itself into this: Was the stipulation in the contract as to time a material one?” We have seen that the time mentioned in the contract within which the road was to be completed was not a condition precedent to the delivery of the notes, and that the notes were voluntarily and properly delivered after the road was completed. Under these circumstances, I think the delivery of the notes precluded a plea of failure, or partial failure, of the consideration expressed in the contract, to wit: “The advantages to be derived by them (parties of the first part) from the extension and operation of said railroad.” As it is admitted that the road was completed on August 8, 1888, the only possible failure of the consideration was the - failure to ‘operate the road from April 27th until August 8, 1888; and such failure occurred and must have been known to all parties interested before the notes were delivered. In the absence of fraud and mistake the delivery of the notes completed a conclusive settlement of all obligations of both parties arising from the subscription contract. After such settlement that contract was satisfied, and was no longer executory by either party. The delay of three and a half months in completing the road, known to defendant at the time of the settlement, must have been considered of no consequence injurious to the defendant, or excusable, as found by the court. Furthermore, there is no foundation in the answer for a counterclaim, or a recoupment of damages on account of the. delay, as to which the whole substance of the answer is as follows: If the road had been completed as in the contract provided, the defendant would have been able to sell his property “at greatly enhanced price over what it was then worth with *581 out said railroad, and over what it is now worth with said railroad”; and “defendant could, during the month of December, 1887, and before signing said contract and notes, have sold his said land at a greater price than he could at the time of the alleged completion of said road, or at any time since.” It thus appears that there was a decline in the market value of defendant’s land between the written date of the contract and the completion of the road; but whether such decline occurred during the .four months within which the road was to have been completed or later is not stated; nor is it alleged that the delay in constructing the road caused any decline in the market price of defendant’s land, nor that defendant would have sold his land at any price, even if the road had been completed within the contract period. That the court properly excluded proof of these averments in the answer is too obvious to admit of question. (Pendleton v. Cline, 85 Cal. 142 .)

The findings of fact by the court are fully justified by the evidence.

I think the order and judgment should be affirmed.

Haynes, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the order and judgment are affirmed.

McFarland, J., Temple, J., Henshaw, J.