Pritchard

(after stating the facts as above).

The view that the agreement is a mere option is untenable. The “party of the first part agrees to sell and the party of the second part agrees to buy. * * * The intent and purpose of this agreement is that the party of the first part sells to the party of the second part all his real and personal property,” etc. So reads the instrument. The obligation of McLeod to pay the items of $1,500 and $2,-500 (evidenced by two promissory notes), upon November 6, 1908, and April 6, 1909, respectively, is absolute, and wholly independent of any contingency whatsoever.

The question whether or not the remaining $25,000 is payable conditionally or unconditionally is not so clear, and perhaps should be finally answered only in the light of all the circumstances surrounding the execution of the agreement. Nash v. Towne, 5 Wall. 689 , 18 L.Ed. 527 ; Canal Co. v. Hill, 15 Wall. 94 , 21 L.Ed. 64 ; Merriam v. United States, 107 U.S. 437 , 2 S.Ct. 536 , 27 L.Ed. 531 . The most favorable view to the defendant is that this balance was understood to be payable only out of a specified fund, namely, the gross output of the claims, and that the defendant’s obligation was…