I think the judgment should be affirmed. The note imports a consideration (Civ. Code, secs. 1614,1615), and the contract shows that the consideration for which it was given was “the advantages to be derived from the extension and operation of said railroad.”
Time was not expressly declared to be of the essence of the contract, and I do not think it can be fairly said that it was intended to be so. The note itself is an absolute promise to pay, and there is nothing in the contract to indicate that payment was to be made only on condition of strict performance. The road was completed in about three months after the time named for its completion, “ weather permitting.” The cause of the delay is not shown, but certainly the delay was not long.
I am unable to distinguish this case from the case in 50 California, 575. That was an action brought to recover a sum of money subscribed by the defendant therein to aid in the building of a street-railroad, under a contract which provided that the road should be completed in six months. It was nearly three months after the time *328stipulated in the contract before the road was completed. It was held on appeal that, where property holders contract with a railroad company to pay it certain sums of money if within a certain time it constructs a railroad, the fact that the road is not built within the time named in the contract is not an excuse for the non-payment of the money, if the road is actually built, but the subscribers will recoup the damage they sustain by the failure to complete the work in time; that courts should not construe stipulations in a contract as conditions precedent, unless the language thereof clearly shows them to be such, because such a construction prevents the court from dealing out justice to the parties according to the equities of the case.
In the case before us we have an instance of the injustice of departing from the rule of construction applied in that case. The defendant herein believed that the extension of the road would be to his advantage, and he therefore made his subscription and executed his note for the sum subscribed. The road has been built, and he has received the benefit thereof. The delay may have prevented him from securing all of the benefit which he would have received if the road had been built promptly on time. It may have been occasioned by fortuitous circumstances beyond the control of the plaintiff. The rights of the parties would be protected, and justice dealt out according to the equities of the case, by holding, as it was held in the case referred to, that if the defendant “ has sustained damages by the delay, he is entitled to recoup to that extent against the claim of the plaintiff.”