Davis & Co. v. Cobban

39 Iowa 392

Opinion

Cole, J.

-Whether a provision in a contract is to be construed as a condition precedent, is often a question of extreme difficulty. The determination of the question depends upon no particular form of words, but upon the intention of the parties to be gathered from the language of the entire instrument. Conceding that there may be well grounded doubts of the correctness of our conclusion, yet our best judgment is,' that the time fixed for the completion of the road was not intended as a condition precedent. If the last sentence had been preceded by the word “ provided,” so that the note had read, “provided the road be finished by September 1, 1872,” it would probably have le|d us to a different conclusion. This word is the distinguishing feature between this case and the cases of The B. & M. R. R. Co. v. Boestler, 15 Iowa, 555, and Thompson v. Oliver, 18 Iowa, 417; see also, Stanford v. Greene County, 18 Iowa, 218. The addition of the word “provided,” as suggested, would manifest the intent to make the time fixed for completion, a condition precedent. This conclusion is more equitable than the other, which would operate as a bind of forfeiture. Under this view the defendant may recoup any damages resulting to him from the delay in completion. Thereby substantial justice is effectuated.

Reversed.