1. It is assigned as error that the referee erred in refusing defendants’ motion for a new trial. One ground of this motion was that the evidence was insufficient to-show that plaintiff performed his part of the contract
II. There was very indefinite testimony tending to show sales of defendants’ lands made by them at $50 per acre. On the other hand there was evidence tending to show sales at not exceeding $47 per acre. Whether the lands sold by defendants constituted the property referred to in the contract, the evidence does not definitely disclose. The referee evidently found that the lands so sold were the ones referred to in the contract and that; they were sold at $50 per acre, for on no other theory could he have given judgment for an amount exceeding $5,000 and interest under the terms of the contract. But even if the defendants did sell their lands at $50 per aore as contemplated at the time of entering into the contract sued upon, we are of opinion that no liability to plaintiff under the contract sued upon, attached, unless and until the plaintiff extended his railroad “to section 85.” Any other construction of the contract would leave the last clause without any consideration whatever. We think the contract on its face purports to bind defendants to pay plaintiff ten thousand dollars in case they sold their property to parties contemplating buying at $50 per acre, or five thousand dollars in case they did not sell the property, upon condition that plaintiff should extend his railroad southerly to section 35, and have same in operation by October 1, 1891. The concluding words of the last clause, “then, in that event, we hereby (agree) to pay said Ambler ten thousand dollars, instead oí Jive thousand dollars, as above, can. bear no other reasonable interpretation. This construction is not only consistent with, but emphasized by, the plaintiff’s testimony respecting the making of
The plaintiff having failed to perform the condition precedent, vizthe extension of his railroad southerly to section 35 by October 1, 1891, he was not entitled to recover anything upon the contract sued upon. The judgment is, therefore, reversed and a new trial granted.
