Isbell

The complaint admits the payment of the first two hundred and fifty dollars at the agreed date, and the payment of the second two hundred and fifty dollars at the “pumping out of the claim”; and seeks a recovery of the sum of twelve hundred and fifty dollars first mentioned in the agreement, on an averment that “the defendant, deeming it necessary, caused machinery to be erected and added for the crushing of quartz taken from said lode. ’ ’ The question presented is whether the liability of the defendant to pay the twelve hundred and fifty dollars sued for is made by the contract to depend upon the erection of machinery to the exclusion of every other condition. The question may be treated as arising upon demurrer or motion in arrest.

The contract lacks precision and some of its provisions seem at first blush to be contradictory. For instance: the first two hundred and fifty dollars is made payable absolutely on a day named, and the second two hundred and fifty dollars absolutely on the happening of a certain event; and still the last clause of the instrument provides that “if the claim should fail to pay after testing that the contract is to be null and void.” Still these…