I. It becomes necessarv at the outset to deter- . . mine the true construction of the instrument upon which this action is brought. The sum mentioned therein is, by the terms of the instrument, made payable on demand after the dam shall be removed, or after the defendant shall recover his damages caused by the dam. The reasonable construction of this language, and the one which obviously effectuates the true intent and meaning of the parties thereto, is, that the money is payable on demand, whenever the defendant shall have recov-*403erect the damages sustained by him by means of the erection and maintenance of the dam, or when the cause of such dam ages, to wit, the dam, shall have been removed so that he will no longer be injured thereby. The only injury the defendant was suffering by reason of the maintenance of the dam, when he executed the instrument in suit, was that caused by the flowing of his land; and it must necessarily follow that if the structure was so far abated that it ceased to cause such flowing, the condition precedent, in that particular, to the right of recovery upon the instrument, was performed. Hence, the position that the whole structure must be removed before the plaintiff can maintain his action, is not tenable. The conclusions of law, as found by the referee, are based upon the construction of the contract here indicated, and to that extent, at least, must be upheld.
H. The learned counsel for the defendant argued with much earnestness and ingenuity, that the finding of the referee, which was approved by the court, that the dam was removed in April, 1869, so that the same no longer obsructed the flow of water in the river to the injury of defendant’s land, is not supported by the evidence. No useful purpose will be accomplished by recapitulating here the testimony bearing upon the subject matter of such finding. It is quite voluminous and conflicting. "We have examined the whole case carefully, and are impelled to the conclusion that this finding is sustained by a fair preponderance of the testimony.
III. The alleged right of the defendant to substitute the contract or undertaking of his grantee for his own is not, or rather the facts upon which such right is claimed .are not, fully set out in the answer. But, inasmuch as the testimony on that branch of the case was received without objection, if it proves a valid defense to the action, no good reason is perceived why the answer may not be amended, if necessary, even after judgment, so that the averments therein may conform to the facts proved.
*404The agreement of the plaintiff to accept the contract of the grantee of the defendant and surrender the instrument in suit, was a verbal one, and was made before the defendant executed such instrument. Many authorities have been cited to show that such agreement was valid and binding upon the plaintiff. We do not find it necessary to pass upon this question, because we think that, admitting it to be a valid agreement, the plaintiff was not bound to accept the contract signed by Wilhelm, which was tendered to him. And this for two reasons: 1. The plaintiff was clearly entitled to a contract from Wilhelm containing the same provisions as are contained in the contract of the defendant. But the Wilhelm contract contains a provision or condition not found in the other, to the effect that the money shall not be payable until a certain lawsuit therein mentioned is settled. 2. But a more serious objection to the Wilhelm contract is, that the defendant, and not the plaintiff, is named therein as promisee. It is .not a promissory note, because it is payable only on the happening of a contingency. It is a mere chose in action, and is not negotiable, although it contains the words “or order.” At the common law the plaintiff could not maintain an action upon it in his own name, although he might do so under our code; yet to such action Wilhelm might successfully interpose any defense which would be available to him in an.action brought upon it by the defendant. The law does not require the plaintiff to take the risk of having his remedy ou the substituted contract thus defeated. He is clearly entitled to a contract or agreement executed by the grantee of the defendant, in which he (the plaintiff) is named as the prom-isee.
IY. The complaint does not demand interest, but the referee allowed, interest to the plaintiff from August, 1869, the date of the demand. Under proper pleadings there can be no doubt that the plaintiff is entitled to interest from that date. ■ Without stopping to determine whether, under the complaint, interest can properly be allowed before the action was commenced, *405it is sufficient to say that the complaint is amendable in this particular, after judgment, and the irregularity (if it be one) is no ground for a reversal or modification of the judgment.
It is believed that the foregoing observations dispose of all the questions in the case argued by counsel, and all that are worthy of consideration.
By the Court.— The judgment of the circuit court is affirmed.