Deacon

C.—Plaintiff recovered judgment for the sum of eight hundred and thirty-five dollars and legal inter *418 est thereon from November 23,1893, found by the court to be due to him from defendant upon the following written instrument:

The complaint—filed March 21,1894—set out a copy of said instrument, and alleged its execution by defendant, and that no part of said sum of eight hundred and thirty-five dollars has been paid, but contained no averment that plaintiff had sold or endeavored to sell the land therein described. Defendant contends that the pleading was insufficient; that the contract imposed on plaintiff the obligation to use diligent effort to sell the land before the expiration of one year at forty-five dollars per acre or more, and that he should have alleged such effort in the complaint. This is so if such endeavor on the part of plaintiff is a condition precedent to the duty of defendant to pay said sum of eight hundred and thirty-five dollars, but we think it clearly is not such a condition. Stipulations in a contract are not construed as conditions precedent, unless that construction is made necessary by the terms of the contract. (Front Street etc. R. R. Co. v.…