Opinion of the Court. 224 U.S. than a mere protest now to induce us to find it unreasonable. The sum is not so great as has been charged and sustained heretofore. St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 104. S. C., 149 U. S. 465. Postal Telegraph Cable Co. v. Baltimore, 156 U. S. 210. Memphis v. Postal Telegraph Cable Co., 164 Fed. Rep. 600, 91 C. C. A. 135. There is the frequently recurring contention that the ordinance is void because of the great penalties that may be incurred in the time necessary to test its legality. Especially mentioned is § 27, as amended in 1902, which imposes a fine of from $100 to $500 for each pole remaining after the time set for their removal, and of from $100 to $500 for every week thereafter. It does not look as if the penalties in this ordinance were established with a view to prevent the appellant from resorting to the Federal courts, nor do we apprehend that an attempt will be made to enforce them in respect to the past. But the penalties are separable from the rest of the ordinance, and if an oppressive application of them should be attempted it will be time enough then for the appellant to file its bill. United States v. Delaware & Hudson Co., 213 U. S. 366, 417. Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 443. One more objection to the ordinance is found in § 31, which limits the privilege as to the conduits to fifteen years and provides that after that time the city may put such restrictions, conditions and charges as it sees fit, or may order the conduits removed. It seems to be thought that this is an attempt to make the appellant contract itself out of the benefit of the act of Congress. What we have said will show some reason for not so regarding the ordinance and as an amendment, § 34, adopted since the bill was filed, provides that none of the obligations, &c., of the chapter shall interfere with rights under the act of 1866, the appellant's position would be no worse by reason of its complying with what it cannot help. We think it 224 U.S. Argument for Plaintiff in Error. unnecessary to discuss the bill in greater detail to show that it cannot be maintained. Decree dismissing bill affirmed. WORLD'S FAIR MINING COMPANY v. POWERS. ERROR TO THE SUPREME COURT OF THE TERRITORY OF ARIZONA. No. 207. Argued March 11, 12, 1912.-Decided April 1, 1912. The owner of a mine contracted with a purchaser for the latter to go into possession and proceed with the development of, and extract ore from, the mine, and to deposit to the credit of the owner in a designated bank the net proceeds up to a specified amount when deeds to the property, deposited in escrow should be delivered. The purchaser proceeded with the work, but deposited proceeds to his own credit in another bank, whereupon the owner attached such deposit and took forcible possession of the mine. In a suit brought by the purchaser, held that: The deposit of proceeds of ore in the specified bank was a condition concurrent or precedent to the obligation of the owner to go on with the contract; and, unless the declaration disclosed an excuse for the breach, the owner was justified in retaking possession. That the action of the owner in attaching the deposit was not an excuse for a breach by the purchaser, nor did the declaration disclose any sufficient excuse for the breach. Under the contract the act of the owner in suing for part of the purchase price which belonged to him would not prevent him from terminating the contract for failure to perform; there was no election. 10 Arizona, 5, affirmed. THE facts, which involve the construction of a contract for sale of mines and what constituted breaches thereof, are stated in the opinion. Mr. Frank H. Hereford, with whom Mr. F. E. Curley was on the brief, for plaintiff in error: The pleadings fully allege those conditions of the con Argument for Plaintiff in Error. 224 U.S. tract that the Arizona courts construed into a condition precedent, fully allege nonperformance, and fully allege excuses for nonperformance on the part of the plaintiff in error. If a party expressly avers or confesses a material fact omitted on the other side, the omission is cured. Hill v. George, 5 Texas, 87; McFarland v. Mooring, 56 Texas, 118; International & G. N. R. Co. v. Sein, 33 S. W. Rep. 558. Many defects are waived and cured by pleading over, that might have been fatal on demurrer. United States v. Morris, 10 Wheat. 246, 283; 31 Cyc. 714. Rev. The reply as a pleading on the part of plaintiff is especially authorized by the statutes of Arizona. Stat. Arizona, 1901, par. 1357. Pleadings will be construed most favorably towards the pleader in determining whether or not the allegations therein contained are sufficient to apprise the opposite party of the questions of fact that the pleader will seek to establish on the trial. United States v. Parker, 120 U. S. 89, 97. The provisions of the contract relating to the depositing of proceeds of shipments of ore need not be specially pleaded, because they were either independent conditions or conditions subsequent. Payments to the credit of defendants in error for ore shipped were not conditions precedent to the contract nor to any rights thereunder. The contract did not make such payments a condition precedent. Setting forth in the contract those failures to perform which would justify a termination of the contract, negatived any claims that a failure to perform any of the other conditions of the contract would authorize the aggrieved party to terminate it. "Expressio unius est exclusio alterius" applies to contracts. Douglas v. Lewis, 131 U. S. 75; Tucker v. Alexandroff, 183 U. S. 424, 436. The putting of these deeds in escrow was an important 224 U.S. Counsel for Defendants in Error. and an expressed condition in the contract. New Orleans v. Texas & P. Ry., 171 U. S. 334. None of the parties to the contract intended that its terms in relation thereto should be a condition precedent and never afterwards considered them as such. The escrow instructions of April 15, 1904, were not a modification or amendment of the original contract, or intended as such. Those instructions prescribed no penalty except the destruction of deeds deposited in escrow for a failure to perform the conditions of the escrow. No penalty could be claimed or enforced under the terms of the escrow instruction until defendants in error had done certain things that were never alleged to have been done nor proved to have been done. 7 Ency. of U. S., Sup. C. Rep. 264; 4 Id. 573. The Supreme Court of Arizona has inferentially held that the escrow instructions did not modify or become a part of the original contract. Powers v. World's Fair Mining Co. (Ariz.), 86 Pac. Rep. 15; S. C., 100 Pac. Rep. 955. What is implied is as effectual as what is expressed. The intent of the parties as manifested is the contract. Equitable Ins. Co. v. Hearne, 20 Wall. 494, 496; United States v. Babbitt, 95 U. S. 334, 336. Even if deposits to the credit of defendant in error of the proceeds of ore shipped were a condition precedent in the contract, then before the time for its performance, defendants in error had elected not to so consider such conditions, had waived the condition precedent, and had elected to consider the contract unbroken by plaintiff in error's failure to perform. 15 Cyc. 258 et seq. The so-called condition precedent was satisfied and complied with nine days before time for complying with it had arrived. Central Nat. Bank v. Conn. Mut. L. Ins. Co., 104 U. S. 54. Mr. Eugene S. Ives for defendants in error. Opinion of the Court. 224 U.S. MR. JUSTICE HOLMES delivered the opinion of the court. This is an action brought by the plaintiff in error upon a contract made by the defendants in error, hereafter called Powers, with one Ferguson, and assigned to the plaintiff in error. The contract was for the sale of some mines known as the World's Fair Group. Powers agreed to place a deed of the mines in escrow in the Arizona National Bank of Tucson within ninety days, to be delivered on performance of the undertakings on the other side. Ferguson was to begin work within ninety days and to go on at a minimum rate until one thousand feet had been done. All ore taken or stoped out below the main level and all ores then on the dumps were to be milled, concentrated or leached on the grounds, twelve dollars per ton being allowed to Ferguson for such treatment. On all ores, if any should be extracted, better adapted to be shipped directly to a smelter, and upon all concentrates, a further allowance to the extent of the shipping and smelting charges was to be made. Ferguson agreed to ship the products 'and after the deduction of the said shipping and smelter charges, to deposit in trust in the Arizona National Bank, Tucson, Arizona, the net proceeds therefrom, the same to remain in trust in said bank until the expiration of this agreement, which shall be upon the completion of the aforesaid one thousand feet of work, or until such time' as Ferguson should pay Powers $450,000 and deliver to him one-quarter of the full paid stock of a company that Ferguson agreed to form for working the mines, the moneys deposited in trust thereupon to be Ferguson's. The agreement was to be void if Ferguson did not begin and prosecute the work in the manner and at the rate agreed upon, and in that event all permanent improvements were to belong to Powers. By a subsequent modification of April 15, 1904, it was agreed that the money deposited in the Arizona National |