JOHN N. BILLINGS v. P. G. EVERETT and the CLEAR LAKE WATER WORKS COMPANY, 52 Cal. 661

The performance was a condition precedent to the right to demand and enforce payment. As the agreement was not performed, there is no right of action on the note. (Civil Code, sec. 1439; Smith v. Brady, 17 N. Y. 173; Barron v. Frink, 30 Cal. 488.) As the consideration for the note was the agreement to construct the canal within the time limited, and as it was never performed, and no part of the work done, nor any part of the contract was done after either of the notes was given, the consideration failed. (Knight v. Knight, 28 Ga. 165; Simonton v. Steele, 1 Ala. 357; Plate v. Vega, 31 Cal. 383; Bissenger v.

Guiteman, 6 Heisk. 277; Boynton v. Twitly, 53 Ga. 214; Stacey v. Kemp, 97 Mass. 166; Harrington v. Stratton, 22 Pick. 510.) As the note in suit was given in lieu of the first note, and upon the same and no other consideration, it is affected by the same infirmities. (1 Parsons on Motes and Bills, 178 ; Hill v. Buckminster, 5 Pick. 391; Copp v. Sawyer, 6 N. H. 386; Clark v. Didreck, 31 Md. 153.) S. G. Harper, for the Respondent. The note must be interpreted by its own terms. If it was a promise to pay on the happening of so uncertain an event as the completion of the canal, then it was not a promissory note.

The note must be interpreted by what appears upon its face. Parol evidence cannot vary its terms. (Burnett v. Stearns, 33 Cal. 468; Aud v. Magruder, 10 Cal. 282; Grey v. Bibend, 41 Cal. 324; Adlers v. Freidman, 16 Cal. 138; Currier v.

Clark, 12 Cal. 170.) By the Court : The answer sets up as a defense an oral agreement made by the defendant with the Clear Lake Water Works at the time when the note in suit was executed, to the effect that the note should not be paid unless the canal was constructed and completed across the lands of the defendant so that one thousand acres of his land could be irrigated therefrom, before the maturity of the note, and that the water company has failed to complete the canal in accordance with this agreement.

If this averment be true, the consideration of the note has failed in whole or in part, and as the plaintiff: took the note after maturity, the defense is available as against the note in his hands. The Court below failed to find on this material issue raised by the answer^and no judgment could be properly rendered until there was a finding on that point. Judgment reversed and cause remanded, with an order to the Court below to find upon said issue on the evidence taken at the trial and on such other evidence as. shall be adduced, and thereupon proceed to render judgment. Remittitur forthwith.