Page:Federal Reporter, 1st Series, Volume 7.djvu/94

 82 FEBKEALi ESPOBXBr.. �Company, and the advantnges thereafter to accrue by the conatruction of said raiiwav through the precincts of Ohio and Falls City." �And the defendants agree as follows : �To pay jointly and severally to the Nebraska Railway, or its order, the sum o;^.jf^5,000,, in la,Fful money qf the, United, States of America, to be paid in iiistalnjetits as ioilows, tp-wit : $10,500 theregi when said railway cpmpapy shalj havs graded its roai-bed and built its ciilverts tljirough the precin,<i|of Ohio accordjng to the teTCia of the foregoing proposition ; $35,- OOpihereof when, Jihc said Nebraska llailway Company shalLhave graded its yoad-bed and built its culverts through the ■prccinct of Falls City ac- eo^j^ih^ to the tenus of the foregoing proposition;, $19,500 whin said If c^p^ek^ Railway Company ah^all have gpded,.t^ed, an(J irpned its road- \icay,through the, precincts of Ohia apd I*alLs City, accordin^, to the fore- gping propositions, — each instamment of ^yhich shall })e jriuiy a.nd proipptly �The '"foregoing propositioh" referredto iu tHia' agreeinent, among other things, provided that the railroad should be cojqstrncted Tbefofe Deceniber'l, 187^,; The petitioa ^alleges that the gifading was eompleted in accordapoe with the eon- tract, but there is no allegation that the rbadhaseTer been completees ' Thetime ior the completioiiof the roaS, apccord- ing ..to the terms of thc agrp.ement, had elapsed befpre. the eommencement pf this suit. The defendant files, a general demurrer to the petition, under which he itisists — First, that the contract is not binding on the defenda,nt8 for want of mutiiality;;^secowi, that the contracf is au eniirffty", ana'as ttieplaintiff bas commenced this action- aftef ex^ifatiBii of the time within which the railroad company was to haie iiotn- f/feted the ' railrOad, he cannot re'cover ^ithoiit alleging aiid proying a jfull performance of the contract on the part bf 'the company,. ory. in other worda, ,that it bas finished the.road; iftirci, that- the plaintiff cfennot iecover Mthout alleging, perr forinanoe of 'all the stipulations 'pi the coiitract to be per- foripe4vipon ihe part of the railroad cosapany. ,, �O. P; Jkfaaon, f or plaintifif. ,..:.:,. �E. W. Thomas, for defendants. ' ' ' �: . MoCiji^ip', ; C. J. j The dpmillrrer raises the, questipn .whether �suit can be maintained on the contract upon th^f^c^s dis- �closeji by the petition. The plaintiff sues af ter the expiration �of,.. the tjme within -which, by the terms pf; the cputj-act, the ��� �