We are of the opinion that the seventh paragraph of the contract was not operative until the performance of its stipulations was, upon proper notice, expressly required by the defendant. We are also of the opinion that the charge of the Court upon the question of such notice was erroneous, and that the exceptions of the plaintiffs in that respect should be sustained. The provision in question was construed when this case was before us on a former occasion (108 N. C., 121), and it ”was then held that its performance was not a condition precedent to the payment of rent, but was the subject of an independent covenant, for a breach of which the defendant would be entitled to recover damages. It is but just, therefore, that the notice to put in operation so important a part of the contract, imposing, as it does, so serious a liability, should have been clear and explicit. The seventh paragraph provides that the water company shall “at all times furnish, if required, one hundred gallons of water per day of twenty-four hours, for each inhabitant of the city of Charlotte, and a sufficient force or pressure to throw from any five of said fire hydrants, at one and the same time, through one-inch nozzles and fifty feet of two- and-a-half-inch hose, five streams of water to the height of seventy-five feet.”

It was in evidence that for a long period the water company had failed to furnish an adequate supply of water, etc., under the general provisions of the contract, and it is insisted that the notice given by Dr. McAden (the only witness of the defendant upon this subject) had reference to these alone. It is needless to repeat here the entire testimony of the witness, except to remark that he stated that the notice given by him was that the water company should “ bring its water up to the requirements of the contract, and so as to throw water on fires.” He says nothing about requiring the enforcement of section 7, as to the one hundred gallons of water per day and the additional pressure. On the contrary, the *455 witness said: “I did not expect of Fleming (the superintendent) that he should furnish pressure as provided in section 7, and did not make my demand in terms of tliat section. I asked a proper supply and service of water in time of fire, and the notice was that he must comply with his contract.” It is true that Fleming suggested a test of the five streams as required by section 7, but this surely was no direct evidence of an express demand for the performance of such independent covenant, when the witness McAden himself says that he did not expect that such part of the contract should be performed. We doubt very much whether there was any sufficient evidence of such an explicit notice as is required to put in operation the contingent provision of the contract above mentioned. However this may be (there was no prayer for instruction upon this point), we think that his Honor erred in not permitting the jury to draw their own inferences from the testimony, instead of charging them as he did.

As the case goes back for another trial, and may be presented in a new and different aspect, we think it best to refrain from discussing the other questions presented in the record. We will remark, however, that the provision as to the nonpayment of rent is a valid one, and that if the plaintiffs fail to show a performance of the contract during the first three months, they cannot recover for that period. As to the succeeding three months, we are inclined' to the opinion that they are entitled to recover upon a quantum meruit, the special contract having been determined, by reason of its own limitation, at the end of the first three months.

New trial.