Contract, Performance and breach. Railroad, Spur track.
If a proprietor of coal sheds constructs a spur track on the land of a railroad corporation connecting the main tracks of the railroad with the sheds, and the railroad corporation agrees with such proprietor that in transporting coal for him it will deliver the coal at his sheds, the transportation does not come to an end until the cars are placed on the spur track adjoining the sheds and, until this has been done, in the absence of a special stipulation, no action can be maintained for the freight money, because the contract of transportation has not been performed.
LORING, J.
The transportation of the coal did not come to an end until the cars were placed on the side track "running . . . to said second party's [the intestate's] coal shed," maintained by the plaintiff on its own land, under the agreement between the plaintiff and the intestate, for the delivery of coal consigned to the intestate. The plaintiff's contention is that it "properly could refuse to place said cars where the defendant [the intestate] wanted them placed before the defendant [the intestate] paid the freight." But to this contention we cannot assent. In our opinion the question is whether the plaintiff was entitled to the freight before it had completed the transportation. It is plain that it was not. The case comes within the elementary proposition that in the absence of a special stipulation a man is not entitled to his pay until he has finished his job. See for example Adams v. Clark, 9 Cush. 215, 216, 217. There is nothing to the contrary in the cases cited by the plaintiff.
The cars in question were "Cars taking private track delivery" within the plaintiff's "Rules and Instructions regarding Demurrage and Car and Track Service." For that reason demurrage did not begin to run when the cars were placed upon the plaintiff's public delivery tracks.
The private delivery track in question was on the plaintiff's land, and by the terms of the agreement between the plaintiff and the intestate was subject to "the absolute control and management of" the plaintiff. There was no difficulty therefore in the plaintiff maintaining its lien for the freight after the cars were placed on this track. Lane v. Old Colony Fall River Railroad, 14 Gray, 143.
By the terms of the report the entry must be: Judgment for the plaintiff in the smaller sum, to wit, $292.65, with interest from the date of the writ; and it is
So ordered.