Whittemore v. New York, N.H. & H.R. Co.
| Decision Date | 03 April 1906 |
| Citation | 191 Mass. 392,77 N.E. 717 |
| Parties | WHITTEMORE et al. v. New York, N.H. & H.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas. E. Hellier and Wm. P. Everts, for plaintiffs.
J. H. Benton, Jr., for defendant.
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 its location. Brainard v. Clapp, 10 Cush. 6, 57 Am. Dec. 74. The thing to be removed here was a connection in one of the main tracks of the defendant railroad. 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 Mfg. Co. v. Mason Regulator Co., 183 Mass. 25, 26, 66 N.E. 420, 421, 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, etc., R. R., 174 Mass. 363, 54 N.E. 867. 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.
To continue reading
Request your trial
-
New York Cent. R. Co. v. Cent. New England Ry. Co.
...The promise of the Boston & Albany Railroad Company was not, therefore, purely illusory. The case of Whittemore v. New York, New Haven & Hartford Railroad, 191 Mass. 392, 77 N. E. 717, is clearly distinguishable; there the term of the agreement, ‘that whenever said first party may find it n......
-
Walsh v. Wyman Lunch Co.
...Life Ins. Co., 193 Mass. 215, 222, 79 N. E. 250;Barron v. International Trust Co., 184 Mass. 440, 68 N. E. 831;Whittemore v. N. Y., N. H. & H. R. R., 191 Mass. 392, 77 N. E. 717. The judge also rightly declined to rule, that there was no evidence from which the jury could find the policy is......
-
Doherty v. Phoenix Ins. Co.
...Life Ins. Co., 193 Mass. 215, 222, 79 N. E. 250;Barron v. International Trust Co., 184 Mass. 440, 68 N. E. 831;Whittemore v. N. Y., N. H. & H. R. R., 191 Mass. 392, 77 N. E. 717. The judge also rightly declined to rule, that there was no evidence from which the jury could find the policy is......
-
York Central Railroad Co. v. Central New England Railway Co.
... ... illusory. The case of Whittemore v. New York, New Haven & ... Hartford Railroad, 191 Mass. 392 , is clearly ... distinguishable; ... ...