Desormaux

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…