Day, J.
The demurrer is a general one, to wit: That the petition does not state facts sufficient to constitute a cause of action, and that it states facts which avoid the canse of action. In argument, it is urged that the petition is defective, in that it does not aver that the railroad was completed to said lands, and a suitable passenger depot and grain elevator erected thereon by the first day of January, 1865, nor that the railroad was completed to the village of Decorah, within three years from the date of the first agreement. It is urged that these things are conditions precedent, and that a performance of all of them, within the time stipulated, is essential to the plaintiff’s right to maintain this action.
The only question which this case presents, is one of construction of the agreements above referred to.
1. Contract: construction. I. The stipulation respecting the construction of a railroad to said lands, and the erection of a dejmt and grain elevator thereon, by the first day of January, -j g}g found only in the second agreement made between plaintiff, the Wheelers and Day. In this contract, the Wheelers and Day agree to convey to the McGregor Western Railroad Company twenty acres of said land for a depot and other purposes, and the right of way through said lands, upon which said company may locate their road to said depot grounds.
The agreement then contains the following stipulation: [333]*333“ This contract is made upon the express condition that the said railroad company shall construct and finish their railroad to the lands aforesaid, to wit: The twenty acres, on or before the first day of June, A. D. 1865, * * * and shall also erect upon said twenty acres a suitable freight and passenger depot, and erect or cause to be erected thereon a grain elevator of sufficient capacity to hold, at least, forty thousand bushels of grain.”
Now, while the words this contract, and what follows, may, to the casual reader appear to apply to the entire agreement, so as to make it all to depend upon the performance of these conditions, yet, a close analysis of the contract will discover that this phrase can apply only to what immediately precedes, to wit, the agreement to convey depot grounds and right of way. It is one of the canons of interpretation that an agreement is to be so construed, if possible, as to give effect to all its parts.
The subsequent part of the contract provides, that the plaintiff shall cause said lands to be surveyed and platted into lots and outlots; that Day shall act as agent for the sale and management of the same, and that, from the sales made, the Wheelers are to receive from Greene one-half interest the sum of $2,000, and Day in the same manner a like sum.
The contract further provides as follows: “ It is also agreed and understood by and between the parties hereto, that the parties of the second part, and the said G. Day, shall execute and convey to the party of the first part, perfect titles to the undivided one-half of said lands, -x- -x- * ag g00I1 as ^he payments arising from the sales aforesaid, or otherwise, to the said Wheelers and the said Day, shall amount to $2,000, for each undivided quarter of said two hundred and forty acres.” * * *
The condition here imposed, upon which the plaintiff’ shall be entitled to an entire completion of the agreement, by conveyances from Day and the Wheelers, is that enough [334]*334of said lots shall be sold to pay the said Wheelers and Day, from the plaintiff’s interest therein, the contract price.
And, as no restriction is placed npon.tke time of commencing sales, it is apparent that enough lots might be sold to entitle plaintiff to conveyances long before the expiration of the period for building said railroad to the depot grounds, and erecting thereon the elevator and depot.
Hence, if the phrase, " this contract,” and what follows, applies to the entire agreement, we have one portion of the contract which entitles plaintiff to an immediate conveyance, and another portion which inhibits such conveyance until the performance of certain conditions precedent. We must, therefore, discard this construction, and limit the above stipulation to the agreement respecting depot grounds and right of way, thus giving effect to, and harmonizing all portions of the contract. The conditions of the first contract, upon which the Wheelers are to convey to Day, are not carried into the second contract, and made conditions upon which the Wheelers are to convey to the plaintiff. It follows that, if the defendant Day has sold enough of the lots to pay the Wheelers from Greene’s interest therein the sum of $2,000, the plaintiff is entitled to a conveyance from the Wheelers.
And, if the defendant has sold more than enough to pay the Wheelers from plaintiffs one undivided fourth interest, he holds the same in trust for plaintiff, he ought to be held to account for the sales made on behalf of the fourth interest, purchased by plaintiff from the Wheelers.
To this extent, it is clear to us that the petition states facts sufficient to constitute a cause of action, and that the demurrer was improperly sustained.
2. - conflicting provisions. II. The agreement between the Wheelers and Day, contains the following stipulation: “And it is further understood and agreed by and between the parties that unless a railroad is built and completed to said village of Decorah, in Winneshiek county, [335]*335Iowa, within three years from the date of this instrument, then this instrument and all its covenants shall be null and void.” In the subsequent contract of the Wheelers and Day with plaintiff, the said Wheelers stipulate that they are the owners of the lands which are made the basis of the contract, “ subject to certain agreements of said party with one Claibourn Day, of said Decorah, whereby said party agreed to convey to said Day the undivided one half part of said lands, upon certain conditions, for the sum of $4,000, which contract is to remain intact and unchanged in any respect, by any thing in this instrument, to which the said Day hereby assents and agrees to become a party.” If this is construed in its broad and general sense, the two contracts are, in some of their parts, placed in direct antagonism to each other." The first contract provides that the Wheelers and Day shall bear equal portions of the expense of surveying said land into lots. The second agreement provides that Greene shall bear the expense of the survey of said lands. Now we apprehend all the parties to the agreements would admit that in this respect the first contract is, in fact, changed by the second. If the change of the first contract to this extent be admitted, then this provision of the second agreement amounts simply to this, that the first agreement shall remain intact and unchanged by any thing contained in the second, only in so far as the provisions of the two do not directly conflict. And, indeed, effect can be given to the two agreements, only by this construction. For a construction which would place the two contracts in opposition, would, render them incapable of execution. Further, in construing this provision, reference must be had to its position and connection in the contract. It will be observed that it occurs merely in that portion of the agreement in which the Wheelers refer to their ownership of the property, and, as qualifying their otherwise absolute ownership, refer to the existing contract with Day.
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Day, J.
The demurrer is a general one, to wit: That the petition does not state facts sufficient to constitute a cause of action, and that it states facts which avoid the canse of action. In argument, it is urged that the petition is defective, in that it does not aver that the railroad was completed to said lands, and a suitable passenger depot and grain elevator erected thereon by the first day of January, 1865, nor that the railroad was completed to the village of Decorah, within three years from the date of the first agreement. It is urged that these things are conditions precedent, and that a performance of all of them, within the time stipulated, is essential to the plaintiff’s right to maintain this action.
The only question which this case presents, is one of construction of the agreements above referred to.
1. Contract: construction. I. The stipulation respecting the construction of a railroad to said lands, and the erection of a dejmt and grain elevator thereon, by the first day of January, -j g}g found only in the second agreement made between plaintiff, the Wheelers and Day. In this contract, the Wheelers and Day agree to convey to the McGregor Western Railroad Company twenty acres of said land for a depot and other purposes, and the right of way through said lands, upon which said company may locate their road to said depot grounds.
The agreement then contains the following stipulation: [333]*333“ This contract is made upon the express condition that the said railroad company shall construct and finish their railroad to the lands aforesaid, to wit: The twenty acres, on or before the first day of June, A. D. 1865, * * * and shall also erect upon said twenty acres a suitable freight and passenger depot, and erect or cause to be erected thereon a grain elevator of sufficient capacity to hold, at least, forty thousand bushels of grain.”
Now, while the words this contract, and what follows, may, to the casual reader appear to apply to the entire agreement, so as to make it all to depend upon the performance of these conditions, yet, a close analysis of the contract will discover that this phrase can apply only to what immediately precedes, to wit, the agreement to convey depot grounds and right of way. It is one of the canons of interpretation that an agreement is to be so construed, if possible, as to give effect to all its parts.
The subsequent part of the contract provides, that the plaintiff shall cause said lands to be surveyed and platted into lots and outlots; that Day shall act as agent for the sale and management of the same, and that, from the sales made, the Wheelers are to receive from Greene one-half interest the sum of $2,000, and Day in the same manner a like sum.
The contract further provides as follows: “ It is also agreed and understood by and between the parties hereto, that the parties of the second part, and the said G. Day, shall execute and convey to the party of the first part, perfect titles to the undivided one-half of said lands, -x- -x- * ag g00I1 as ^he payments arising from the sales aforesaid, or otherwise, to the said Wheelers and the said Day, shall amount to $2,000, for each undivided quarter of said two hundred and forty acres.” * * *
The condition here imposed, upon which the plaintiff’ shall be entitled to an entire completion of the agreement, by conveyances from Day and the Wheelers, is that enough [334]*334of said lots shall be sold to pay the said Wheelers and Day, from the plaintiff’s interest therein, the contract price.
And, as no restriction is placed npon.tke time of commencing sales, it is apparent that enough lots might be sold to entitle plaintiff to conveyances long before the expiration of the period for building said railroad to the depot grounds, and erecting thereon the elevator and depot.
Hence, if the phrase, " this contract,” and what follows, applies to the entire agreement, we have one portion of the contract which entitles plaintiff to an immediate conveyance, and another portion which inhibits such conveyance until the performance of certain conditions precedent. We must, therefore, discard this construction, and limit the above stipulation to the agreement respecting depot grounds and right of way, thus giving effect to, and harmonizing all portions of the contract. The conditions of the first contract, upon which the Wheelers are to convey to Day, are not carried into the second contract, and made conditions upon which the Wheelers are to convey to the plaintiff. It follows that, if the defendant Day has sold enough of the lots to pay the Wheelers from Greene’s interest therein the sum of $2,000, the plaintiff is entitled to a conveyance from the Wheelers.
And, if the defendant has sold more than enough to pay the Wheelers from plaintiffs one undivided fourth interest, he holds the same in trust for plaintiff, he ought to be held to account for the sales made on behalf of the fourth interest, purchased by plaintiff from the Wheelers.
To this extent, it is clear to us that the petition states facts sufficient to constitute a cause of action, and that the demurrer was improperly sustained.
2. - conflicting provisions. II. The agreement between the Wheelers and Day, contains the following stipulation: “And it is further understood and agreed by and between the parties that unless a railroad is built and completed to said village of Decorah, in Winneshiek county, [335]*335Iowa, within three years from the date of this instrument, then this instrument and all its covenants shall be null and void.” In the subsequent contract of the Wheelers and Day with plaintiff, the said Wheelers stipulate that they are the owners of the lands which are made the basis of the contract, “ subject to certain agreements of said party with one Claibourn Day, of said Decorah, whereby said party agreed to convey to said Day the undivided one half part of said lands, upon certain conditions, for the sum of $4,000, which contract is to remain intact and unchanged in any respect, by any thing in this instrument, to which the said Day hereby assents and agrees to become a party.” If this is construed in its broad and general sense, the two contracts are, in some of their parts, placed in direct antagonism to each other." The first contract provides that the Wheelers and Day shall bear equal portions of the expense of surveying said land into lots. The second agreement provides that Greene shall bear the expense of the survey of said lands. Now we apprehend all the parties to the agreements would admit that in this respect the first contract is, in fact, changed by the second. If the change of the first contract to this extent be admitted, then this provision of the second agreement amounts simply to this, that the first agreement shall remain intact and unchanged by any thing contained in the second, only in so far as the provisions of the two do not directly conflict. And, indeed, effect can be given to the two agreements, only by this construction. For a construction which would place the two contracts in opposition, would, render them incapable of execution. Further, in construing this provision, reference must be had to its position and connection in the contract. It will be observed that it occurs merely in that portion of the agreement in which the Wheelers refer to their ownership of the property, and, as qualifying their otherwise absolute ownership, refer to the existing contract with Day.
[336]*336To render it apparent that they do not intend to ignore said contract with Day, they insert by way of recital that the same is to remain intact. In other words, Day is not to be divested of any rights pertaining to him under the first agreement, and, in so far as may be necessary to preserve those rights, the first contract is to remain intact. With this understanding, we are prepared to place a further construction upon the two agreements. The original contract provides that Day shall acquire no- rights thereunder, unless a railroad is constructed to Decorah within three years. The second contract stipulates that Day shall convey to Greene an undivided one-fourth of said lands, when a certain amount thereof shall be sold, .which, as before said, may occur long before the expiration of the three years.
But Day cannot comply with this undertaking until he obtains title himself. The two agreements are thus placed in direct conflict. Both cannot be enforced. One must yield. But, as we have before seen, the first contract is to remain intact only in so far as it does not necessarily conflict with the second. When this conflict arises, the second agreement, as embodying the latest intention of the parties, must prevail.
It is evident that these contracts were drawn without sufficient regard to clearness and certainty, and hence their provisions, in other respects than those mentioned, are incongruous and apparently conflicting. It is believed that the foregoing construction effectuates the intention of the parties, does no violence to the language of the agreements, and is promotive of substantial justice.
It follows that defendant must render a full account of all the sales made.
It seems that the Wheelers should be made parties to this suit. But the demurrer does not raise the question of a defect of parties.
The demurrer was improperly sustained.
Reversed.