by John Marshall Harlan

“ As the moneys advanced by J. S. Waterman to R. W. Waterman and Porter were all repaid before the commencement of this suit, and as no conveyance was demanded from R. W. Waterman within the time limited by his obligation, the plaintiff was not entitled to the relief asked.
One other point requires notice at our hands. An interlocutory decree was rendered declaring the plaintiff to be entitled to the relief asked, and the cause was referred to the master to state the accounts between the parties in respect to the use of the property, and the profits derived from it. ”

“ The demand for a conveyance within a given time-looking alone at the writing-was made by the parties a condition precedent to the acquisition by J. S. Waterman of an interest in the property. R. W. Waterman did not agree to convey, except upon the peformance of that condition precedent. The condition being lawful, it is not competent for the court to dispense with its performance. ”

“ This latter fact is proved by several witnesses, some of whom participated in the trial as attorneys, and from numerous letters which passed between R. W. Waterman and J. S. Waterman shortly after the writings of May 14, 1881, were executed. R. W. Waterman wrote to his brother, under date of July 16, 1881: 'I expect you will have to come out next mo. That suit must come off; I am tired of holding witnesses.' Under date of July 22, 1881:
'Things are transpiring which I fear will make us work to beat Miller. ”

“ In a suit brought by miller he was examined as a witness for R. W. Waterman, for the purpose of contradicting the evidence of Miller. His cross-examination, as taken down, at the time, by the official reporter of the court, was as follows: 'Question. Have you any pecuniary interest in this litigation? Answer. No, sir. Q. Have you any interest in any of these mines, out there? A. No, sir. Q. Or in the mill? A. No, sir. Q. Heven't you made advances of money the repayment of which is dependent principally upon your brother and Porter retaining these mines and working them? A. Yes, sir. ”

“ A. That is the understanding; they would have to pay out of the mines. Q. They would have no other mines to pay you from? A. They have other mines. Q. Do you think they have other mines that would respond? ”