Contract, Construction. Railroad. Evidence. Under a contract between a railroad company and a coal dealer, by which the company agrees to construct a spur track on its land at a certain point to accommodate the coal business of the dealer, and the dealer agrees that whenever the company "may find it necessary for the accommodation of its business to remove said spur track, no claim for damage or loss by reason of its removal shall be made," the railroad company is the sole judge of the necessity of removing the track for the accommodation of its business, and if it removes the track in good faith it cannot be held liable on the ground that its action is unreasonable.
In an action by a coal dealer against a railroad company for an alleged breach of contract by the removal of a spur track built by the defendant on its own land to accommodate the business of the plaintiff under an agreement that whenever the defendant "may find it necessary for the accommodation of its business to remove said spur track, no claim for damage or loss by reason of its removal shall be made," evidence offered by the plaintiff that "it was not necessary for the accommodation of the defendant's business to remove the spur track in question at the time when it was removed" should be excluded as immaterial in the absence of evidence that the defendant was not acting in good faith.
LORING, J.
The construction of the contract here in question, put forward by the plaintiff in his request for a ruling, is wrong.
It has been the law of this Commonwealth from the beginning that a railroad not owning the fee in its location, having regard to the duty owed by it to the public, is the sole judge of what shall be or shall not be done within the location. Brainard v. Clapp, 10 Cush. 6.
The thing to be removed here was a connection in one of the main tracks of the defendant. The terms of the agreement were "that whenever said first party may find it necessary for the accommodation of its business to remove said spur track," no claim for damage shall be made.
In our opinion this provision comes within the class of cases collected in Lockwood Manuf. Co. v. Mason Regulator Co. 183 Mass. 25, 26, in which the decision of one party to the contract is final, "however unreasonable he might be, provided he acted in good faith." See in this connection Whittemore v. New York, New Haven, Hartford Railroad, 174 Mass. 363.
In case of such a contract, evidence that "it was not necessary for the accommodation of the defendant's business to remove the spur track in question at the time when it was removed," is not material, in the absence of evidence that the defendant did not act in good faith.
Judgment for the defendant.