Cole, J.
The evidence tended to prove that, at the time the note, was giveú, the town of "Wheatland was situated on land which had been platted and recorded as such, but the town had never been incorporated; that the plaintiff resided "and was the owner of property there; that after this note was executed and before this suit was commenced, the town had been incorporated and included territory extending in the direction of the depot of plaintiff, as now located, a distance of eighty rods, and that the depot was distant about thirty rods further — that the depot is four hundred and eighty-four feet *300distant, (near thirty rods,) more than eighty rods distant from the nearest part of the recorded plat of the town.
The court instructed the j ury that if the depot was established more than eighty rods from the town of Wheatland, as it was on the date of the note, the plaintiff could not recover; and that, if defendant paid the money as set out in his counter claim, expecting and believing that plaintiff would locate and establish a depot within eighty rods of the town, as it was on the date of the note, the jury should find for him the amount so paid, with interest. The correctness of these instructions involves the true interpretation of the contract sued upon.
l. contract: note. By the very terms of the obligation sued on, it was given “upon the express condition * * * that a depot be established within eighty rods of the present town Wheatland.” The evidence is without confiict, an¿ very c]_eaiqy proves that the depot, as established, is more than eighty rods from the present town of Wheatland. An instrument ordinarily takes effect, and is to be construed by the law and facts existing at the time of its • execution. But in this case the language of the note renders assurance doubly sure, for it says the “present town.” The plain, fair and ordinary meaning is, within eighty rods of the recorded plat of the present town; or within that distance of some part of the present town. Indeed the language needs no interpretation — he who runs may read, and reading, understand it.
Upon the other branch of the case — the right of the defendant to recover the money paid, the question may not be so plain or easy of solution.. The right of the defendant to recover is not based upon an express promise by the plaintiff, ' nor upon any fraud or wrongful act of the plaintiff, nor upon a mistake of either law or fact by the defendant, but simply, that the defendant, “ relying upon the good faith and fair dealing of plaintiff and fully believing it would perform said conditions and expend said money and locate a dej)ot as provided in said contract, and as contemplated by defendant, he did, from time to time, make advances upon said contract in money.”
*301If the obligation, is, as the defendant claims it to be, simply a promise on his part to pajf the amount upon the performance of a certain condition by the plaintiff, then it is clear the plaintiff is under no obligation to perform the condition. The plaintiff may perform the conditions and demand the payment of the money, or, at its election, it may fail to perform and lose its right to demand the payment of the money. The defendant, having paid his money without requiring the performance of the condition, will be held to have waived the right, pro tanto, to demand the performance of the condition. lie might, even now, waive the conditions and pay the balance due upon the instrument, and if he should do so, he could not recover the amount so paid.
2. —:—: notes1;8'voimentf pay The consideration for the defendant’s promise consists of three elements or distinct matters as disclosed by the note and other evidence respecting the subject matter, to-wit: the five shares of the capital stock of plaintiff, the enhancement of the value of defendant’s property by the construction of the i*oad, and his convenience and advantage by the location of the depot. Now, if it be conceded that when one pays money to another under such circumstances as that, ex equo et bono, that other should repay, the law will imply a promise, so that an action for its repayment can be maintained, non constat, ex equo et bojío this plaintiff ought to repay. For aught that appears, the defendant is interposing a mere technical objection to the plaintiff’s recovery for the whole. This mere technical right, constituting a legal defense, cannot be converted into an equitable basis for the support of an action, in the absence of any promise, fraud, mistake or the like, and none of these are either averred or proved in this case. The mere voluntary payment of the money upon his own obligation, against which he may ultimately have a complete defense, will not entitle him, without moré, to recover the amount so paid.
Reversed.