Desormaux v. Meader , 1 Cal. Unrep. 400 ( 1867 )

SAWYER, J.

Clearly under the terms of’the contract in suit the defendant was not bound to run the “copper-smelting establishment,” to be erected under it, to the full extent of its capacity for a period of five years, or for any other time. In addition to the six thousand dollars per annum salary for one year, the defendant was to pay the plaintiff “ñfty cents for each and every ton of ore smelted in the above establishment during the period of five years from the time that the work of smelting is commenced within said establishment, whether it shall remain under the superintendence of the party of the second part or not.” While this covenant required defendant to pay fifty cents per ton for every ton smelted during the five years, it did not require him by express terms or by any reasonable construction to run the establishment constantly, or during the entire term, or any specified portion of the time. The enterprise was one of great hazard. If profitable, the profits were doubtless supposed to be sufficient inducement to defendant to carry on the business after going to the expense of erecting the necessary furnaces and machinery. If defendant was willing to risk his capital, it may well be supposed that plaintiff might risk the chance of further profits, after getting a certain and liberal salary of six thousand dollars per annum for his services, without requiring defendant to obligate himself to work the establishment for the sole purpose of giving plaintiff fifty cents per ton for the rock smelted, whether he obtained any profit or not. However this may be, no such hard bargain for the defendant is expressed in the contract sued on, or can reasonably be implied from the terms. This is the principal question in the case. The minor questions arise out of the rejection of the evidence and on the instructions given and refused. We have carefully examined the points raised, and we think no error is shown in the rulings of which complaint is made.

Judgment affirmed.

We concur: Shafter, J.; Sanderson, J.; Currey, C. J.