
    [No. 4084.
    Decided July 15, 1902.]
    Hugh Monroe, Respondent, v. Thomas Wilson et al., Appellants.
    
    CONTRACTS — BREACH — SALE OE BUSINESS — CONDITIONAL PAYMENT OE CONSIDERATION.
    Under a contract providing that defendant should pay plaintiff fifty dollars per month, while operating a stage line sold him by plaintiff, payable “until there is a railroad running into Republic or an opposition stage,” the refusal of defendant to pay such monthly installment for a period of four months, during which another stage line was run in opposition t'o him, would not constitute a breach.
    Appeal from Superior Court, Stevens County. — Hon. William E. Richabdson, Judge.
    Reversed.
    
      II. O. Kirkpatrick, and Post, Avery & Higgins, for appellant.
    
      J. A. Rockford, for respondent.
   The opinion of the court was delivered by

Reavis, C. J.

Action to recover damages, for breach of the following written agreement:

“Agreement is made on this. 18th day of January, A. X>. 1900, between Hugh Monroe, party of the first part, and Thos. Wilson, party of the second part. Party of the first part agrees to withdraw his stage outfit, known as the ‘Monroe Stage Line,’ from the route between Kettle Kails, Wn., and Republic, Wn., and to turn over to- the party of the second part any and all stage, express, and passenger business to or from Republic, or between Kettle Kails and Republic, and to turn over to the party of 1he second part any privileges held with the Spokane Kalis and Northern Ry. Co. and the annual pass and the right to solicit passenger business on the trains, and to tnrn over to the party of the second part the rights and privileges with the business, held with the Great Northern Express Co., and further agrees to assist, in any way necessary, the party of the second part in holding the express kud passenger business, and in keeping out any opposition to the party of thei second part. The party of the first part further agrees not to be interested, directly or indirectly, in any stage or express business or line between or from the Spokane Ealls and Northern Ry. Co,, to Republic, Wn., and also agrees not to sell his stage outfit to auy one for the purpose of starting any opposition to the'party of the second part,; and the party of the second part agrees to pay to thei party of the first part the sum of Eivei Hundred Dollars ($500.00), lawful money of the Hnited States, Eifty Dollars ($50.00) to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged; the balance of Four Hundred and Eifty Dollars ($450.00) to he paid when the party of the first part, shall have withdrawn his stage ontfit, and turned over the business according to the aforesaid agreement, not to he later than February 1st, 1900. And the party of the second part further agrees to pay to the party of the first part Eifty Dollars ($50.00) per mouth, while running- the stage to Republic, until there is a railroad running into, Republic or an opposition stage. It is hereby agreed that the party of the first part- shall have the right to carry passengers from Meyers Ealls to Nettle Ealls; and any Republic passengers, to be turned at Kettle Ealls toi the party of the second part, the party of the second part agrees to pay a commission of fifty cents each. And, as for thei true and faithful performance of all and every of the said agreement, the said parties of the contract hind themselves, each unto the other, in the penal sum of Five Hundred Dollars ($500.00), lawful money of the Hnited States; fixed, settled, and liquidated damages being paid by thei failing party to the other, his heirs, or assigns.
Hugh Monroe, . (Seal)
Party of the first part.
Thos. Wilson, (Seal)
Party of the second part.”

The complaint alleged the breach of the contract, in the nonpayment of the $50 pea* month stipulated, from the 21-tli of May, 1900, for about four months ensuing. The answer alleged performance of the contract to the first date mentioned in the complaint, and admitted that no payment had been made during the four months, but set up, in defense that an opposition stage was placed upon the route designated in the agreement, and was operated continuously for about four months, thereafter. A jury was waived, the facts determined by the court,, and judgment entered for plaintiff, against defendant Wilson only, in the sum of $200. Defendant excepts, to1 one of the findings of fact,, which is that, there is due from defendant $50 per month under the terms of the contract, and that no opposition stage line was operated during the time.

Our examination of the evidence discloses that two horse vehicles carrying passengers, using about ten horses altogether and advertising in.the newspapers and otherwise as, a stage line,, were run in opposition to the defendant’s line during the, time the defendant declined to pay the $50 per month. These facts appeared substantially without controversy. The contract specifies that $50 per month shall be paid unless, certain contingencies occur, one of which was an opposition stage line. The consideration of the exception of defendant to the explanatory oral evidence heard by the court relative to the meaning of the words “opposition stage” used in the agreement becomes immaterial in view of ihe effect we have given to the evidence relating to the nature of the opposition. This line carried passengers and took away considerable business from the defendant, and caused him substantial loss, and, under the terms of the contract, this was sufficient reason for his non-payment of the $50 per month during the time such opposition continued. The judgment is therefore reversed with direction to enter a judgment for defendant.

Fullerton, Hadley, Anders, Mount and Dunbar, JJ., concur.  