It is conceded that the road was completed from Postville to West Union within the time provided in the contract. It is also conceded that Postville is the point of intersection of plaintiff’s road with the Milwaukee and St. Paul road. The plaintiff claims, therefore, that it has performed its contract.
j. contract: construction. The terms of the contract on this point are that until the road should be completed and the cars running to West Union, and one-half of the grading should be <jone between West Unio'n and the point of intersection with the Milwaukee & St. Paul Railway, defendant’s obligation should not be payable; and, if not completed and the cars running to West Union by October 15, 1872, the contract should be void. The plaintiff contends that within that time the road was completed and the cars running to West Union, and not only half but all the grading done between West Union and the point of intersection with the Milwaukee road. In a strictly literal sense this was true, but was it true within the meaning of the contract, as the parties understood it? We are inquiring now in regard to the contract as it was expressed on paper simply, and not as it might have been added to or modified by parol. Looking at the contract alone it seems to us to leave no doubt as to what the parties intended. Some work was to be done along the whole *118line. Between Postville and West Union the grading was to be half done. In the other direction the road was to be completed to West Union and the cars running. It may be that the defendant’s interests were better served by completing the road from Postville and doing nothing'in the other direction, and that defendant preferred it and urged it, but we are not allowed to interpret the contract in the light of his interests, or in the light of what he said about it.
2 ____ evidence. So far as the' question is concerned as to whether the road was to be completed on the Postville side of West Union, or on the other side, the' contract must speak for itself. The contemporaneous parol agreement, set up in the plaintiff’s reply, could not properly be shown if it was made. But plaintiff avers, by way of amendment to its petition, that, after the contract was made, the defendant stated that he preferred that the plaintiff should construct its road first from Postville instead of from Cedar Rapids, and urged the plaintiff to do so, and that plaintiff was thereby induced to do it. To this it may be said that the evidence on this point is conflicting, and we cannot disturb the judgment of the Circuit Court. But, further than that, it may be said that, taking the plaintiff’s averment to be true, it does not appear that defendant agreed to dispense with the performance of the conditions of the contract, or estopped himself from saying that they were not performed. He might have urged the plaintiff to construct the road on the Postville side of West Union first, without intending to dispense with its construction on the other side within the fifteen months.
3 _._. waiver. If, before the expiration of the fifteen months, defendant had said that he was satisfied and would pay the amount of the contract, and. plaintiff had acted upon or changed its conduct by reason of the declaration, that might properly have been regarded by plaintiff as a waiver-of the conditions to be performed by it. But such is not the plaintiff’s averment. Besides, the evidence is conflicting as to what the defendant said.
'The judgment of the Circuit Court must be
Affirmed.