Kennedy v. Eureka Co.

SOMERVILLE, J. It is our opinion that the Circuit Court placed the correct construction upon the contract set out in the complaint. By its terms it imposed no obligation on the plaintiff to unioad the cars except “ at such times and places as may be ordered ” by the defendant. The defendant would not, therefore, be liable to pay the contract price agreed to be paid for unloading the cars of lime rock, unless such service was ordered or directed, or unless it had been actually performed by the express or implied authority of the defendant, or its corporate agents or officers. The complainant fails to aver either of these alternatives. The failure of the defendant to order the service to be performed was within its discretion, and was not actionable, even had it been declared as a breach, which is not the case. The demurrer was properly sustained, and the judgment is affirmed.