The correction of the finding, applied for under General Statutes, § 797, should be granted in several of the particulars claimed. When Fisk cleared *Page 215 and graded the land and rock on the one hundred and thirty-five-acre tract for the purpose of subsequently drilling and blasting, drilled holes for the blasts, and fired these during the period from November 28th to December 9th, 1910, he was, in our opinion, engaged in quarrying and in the opening of a quarry. The fact that the stone so thrown out was not subsequently crushed and reduced to commercial form did not, as the trial court seems to have held, deny to the work already done its character of quarrying.

The finding that Fisk, in causing blasting to be done and rails laid, did not act in good faith, is a conclusion which the subordinate facts of the finding do not support, and the evidence clearly contradicts. After entering into this contract Fisk found it difficult to obtain from the General Assembly a layout, and from the railroad commissioners their approval, and to secure the necessary rights of way. He had also nearly completed the grading for the laying of rails from the park north for a distance of sixteen or seventeen hundred feet. His delay in beginning the work was due to the obstacles experienced in, and the delay attendant upon, securing the approval of the layout and rights of way. As a result of this delay, over a month before his contract would expire by limitation, Fisk requested an extension of time for beginning the quarrying under the contract. This was refused because Ford was then negotiating for the sale of these pieces of land included in his contract with Fisk, to Sullivan, president of the Shore Line Electric Railway, which endeavored, but had failed, to obtain from Fisk the rights it desired in these tracts. Ford conveyed these tracts to his son, who in turn conveyed to Sullivan, without the knowledge of Fisk, eight days before the claimed termination of the contract with Fisk. Immediately upon ascertaining his inability to secure the extension of time, *Page 216 Fisk did everything he could to keep his contract alive. He graded and laid rails upon the one hundred and thirty-five-acre tract to the quarry, and upon the highway adjoining this tract and the sixteen-acre tract. He began laying rails on the sixteen-acre tract, first tendering $5,000 to Ford; he proceeded to grade and clear the land and rock on the one hundred and thirty-five-acre tract, preparatory to blasting. He drilled and blasted and so continued with that and the construction of the railroad until stopped by notice from Sullivan of his claimed right in these two tracts. When he began blasting he tendered the full purchase price of $8,000 for the sixteen-acre tract, worth at the time of the contract $3,000.

Obviously, Fisk was endeavoring to protect the large investment he had made. His only hope of ever getting back, or making profitable, his outlay, was by completing his project of building the extension to the railroad, and so making available for market the trap-rock on the one hundred and thirty-five-acre tract and then in quarrying and selling the trap-rock. Under such circumstances, an inference that his acts of self-protection were taken in bad faith is so wholly unjustified that we have no hesitation in holding, as matter of law, that the evidence does not tend to support it. A bare recital of the facts in evidence is convincingly persuasive of this.

The conclusion of the trial court, that Fisk had failed to quarry stone within the period of five years of the date of the contract and by its terms the contract determined through the failure to quarry, is disposed of by the correction of the finding. What Fisk did, we hold to have been "quarrying" within the meaning of the contract. The trial court apparently construed the contract to mean that until the railroad for the extension was constructed for the development of the *Page 217 quarries, the plaintiff could not demand a conveyance of the sixteen-acre tract. This is clearly a misconstruction of the language of the contract. It nowhere provides for the building of the extension, nor does it make, or attempt to make, the beginning of quarrying, or the conveyance of the sixteen-acre tract, dependent upon the construction of the extension.

Under the contract Ford granted to Fisk: 1. The sole and perpetual right to establish quarries and to quarry on the one hundred and thirty-five-acre tract. 2. The right to sell and dispose of all the stone quarried under the contract upon this tract. 3. The sole and perpetual right to construct and operate a railroad and railway to be used in connection with the quarry over, upon, and across this tract, wherever it might be convenient to locate the same for the development of the quarry. 4. The right to lay rails over the sixteen-acre tract after the railroad was constructed upon the one hundred and thirty-five-acre tract and after $5,000 was paid on account of the purchase of the sixteen-acre tract. 5. The right to a deed upon the final payment of the purchase price of the sixteen-acre tract. In consideration thereof Fisk agreed: 1. To pay three cents a ton for all stone sold from the quarry. 2. As soon as the railroad was constructed upon the one hundred and thirty-five-acre tract, wherever it might be convenient for Fisk to locate the same for the development of the quarries, to purchase the Ford residence and the sixteen-acre tract connected therewith. 3. To pay for the same $5,000 "when the rails are commenced to be laid on said premises," and $3,000 when quarrying began. 4. In the event that Fisk should form a corporation to quarry stone and assign to it his interest under the contract, he would give Ford $10,000 of full-paid stock of said corporation in addition to the payments hereinbefore agreed to be made. *Page 218

The order of events was to be as follows: The building of the railroad upon the one hundred and thirty-five-acre piece. Thereupon the agreement to purchase the sixteen-acre tract became effective. The laying of rails upon the sixteen-acre tract. The payment of $5,000 when the laying of the rails was commenced on this piece. The beginning of quarrying. The final payment of $3,000 when quarrying began. Thereupon the deed to this tract was to be given.

When the railroad was built upon the one hundred and thirty-five-acre tract and the laying of rails was begun on the sixteen-acre tract, the first payment for the purchase price of this tract was due, and when quarrying was begun the final payment was due. Fisk complied, within the five-year period, literally and completely, with the requirements of the contract, and was entitled to the conveyance of the sixteen-acre tract. He had constructed all of the railroad the contract compelled him to. There was no provision in the contract compelling him to construct the entire extension, nor any limitation when the extension should be completed.

Ford may have felt that in providing for the construction of the railroad upon the one hundred and thirty-five-acre tract and its beginning upon the sixteen-acre tract, and in providing for the payment of a price for the sixteen-acre tract, which was nearly three times its worth, he had amply protected his own interests and made it necessary for Fisk to market the stone in order to get back his investment. He did not think it necessary to insert this in his contract, and he cannot be permitted to remake his contract at this time. The parties may have contemplated that Fisk must build the extension in order to successfully transport the trap-rock from the quarry. But the contract does not compel the building of the extension. Subsequent *Page 219 events (for example, the possible opportunity of shipment by the railway) may make the completion of the extension unnecessary for the purpose of marketing the trap-rock.

Fisk had five years within which to carry out his contract. If he failed to build the railroad across the one hundred and thirty-five-acre tract, his obligation to purchase the sixteen-acre tract never arose. If he built it, his obligation to buy the sixteen-acre tract arose. Ford knew that the opening of the quarry would injure his residence, and he provided for the entire payment of the price at this time.

The trial court construed the intent of the contract to be to secure to Ford an income from the marketing of the trap-rock on the one hundred and thirty-five-acre piece by means of the completed extension of the railroad, and that it was necessary for Fisk to have done this before he could secure a conveyance of the sixteen-acre tract. The purchase of this tract was independent of the royalty to be paid for the trap-rock sold. The two propositions were separate, and so intended.

The deed was to be given when quarrying began. Quarrying had no relation to the marketing of the stone. The giving of the deed had no connection with the marketing of the stone. The payment of a royalty did depend upon this; when marketing should begin is not specified; when settlement shall be made for rock sold is provided for.

There is error, the judgment is reversed and the cause remanded with direction to enter a decree in favor of plaintiff Fisk, providing that defendants Ford and Sullivan convey said sixteen-acre tract by good title to plaintiff Fisk upon payment by him of $8,000.

In this opinion the other judges concurred.