Page:Federal Reporter, 1st Series, Volume 7.djvu/96

84 secure one without also securing the others: The case before us, however, is quite different. It cannot be supposed that the defendants would have employed the railroad company to do the grading alone, without it had at the same time agreed to go on and complete the road. The contract itself declares that the consideration for the contract, on the part of the defendants, was the Benefits they were to receive by the construction of the road through the two precincts named. Suppose the railroad company, or its contractors,' after com- pleting the grading, had failed or refused to go on and com- plete the road upon the demand of the defendants. Would it bel/contended that the plaintiff, under such circumstances, could maintain an action upon the contract? This is prob- ably the test. See Robinson v. Green, 3, Met. 159. If it were alleged in the petition that the railroad company, or the contractors; completed the grading, and were ready, able, and willing to go on and finish the road; that they offered, to do so, and were prevented by the act or fault of defendants, very different question would arise: "But' an allegation that the grading was completed, without more, is insufficient, because it is manifest that the defendants did not intend to bind themselves to pay for grading, and leave the contractors at liberty to finish the road or not at their option. The parties must have understood that the defendants were binding themselves to pay a large sum of money to secure the construction of the railroad through the precincts' in which they resided and held property. If the proposition upon which this action is based, to-wit, that the 'defendants were to pay the price named for the grading whether the road was completed or not, had been suggested at the time of the execution of the contract, no one of the defendants would have assented to it. They undoubtedly regarded the contract as an entirety. Such was the intention; and the construction of the contract, as to its being several or entire, depends upon the intention of the parties to it.

But, independently of this consideration, there can, I think, be no doubt upon another question which is presented by this record. The contract itself shows no mutuality: The de-