
    INDEPENDENT ICE ASS’N v. ANDREWS et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Contract—Breach of—What Constitutes.
    Plaintiff agreed to furnish defendants, for a specified term, two ice bridges at its wharves from which to sell ice; and defendants agreed to furnish ice to be thus sold during such term. The contract provided that plaintiff should receive a certain per cent, of the gross receipts from the .sales; that, if either of the bridges should become uncovered, plaintiff should transfer thereto ice from the other bridge, and receive therefor 50 cents per ton; that, “in case both of such bridges are out of ice at one time,” they should be supplied from plaintiff's bridges, “in the manner aforesaid.” Held, that a failure by defendants to furnish ice for the bridges w'as a breach of the contract, entitling plaintiff to the 50 cents per ton for covering the bridges during the remainder of the term.
    Appeal from special term, Kings county.
    Action by the Independent Ice Association against Wallace C. Andrews and others. From a judgment overruling a demurrer to the complaint, defendants appeal.
    Alarmed.
    Argued before BABHABD, P. J., and DYKMAJST and PBATT, JJ.
    James W. Hawes, for appellants.
    Potter & Potter, for respondent.
   DYKMAJST, J.

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint on the ground that it failed to state a cause of action. The complaint is based upon a written agreement, and alleges a breach thereof by the defendants, to the damage of the plaintiff. Although the agreement is somewhat obscure, we yet think it imposes mutual obligations upon the parties thereto. It commences with a recitation that the plaintiff has a lease of two certain wharves, occupied as ice bridges. It agrees that if the defendants shall furnish ice to be sold over such bridges xmtil the 1st day of April, 1891, the plaintiff will fxxmish free wharfage, hoist, and do all business connected with the selling of sxich ice, and offer all the facilities in its power to increase the trade that may be obtainable over those docks. Then it is provided that the defendant shall have the privilege of putting a bridge boss to represent their interest, and that the weighing shoxild be done by their weighmaster, or under his supervision, as he shall elect; that the cash shall be taken by the defendants’ cashier; and that all credits authorized by Mr. C. H. Eldridge, representing the plaintiff, shall be paid for daily by check of Eldridge. The plaintiff was to receive 10 per cent, of the gross receipts, including credits, each day, for ice sold over the bridges, and five dollars a day was to be deducted from the said 10 per cent, to pay for the services of two men who are at each bridge to represent the interest of the defendants. Then it was stated to be further understood that the defendants should have the privilege of canceling the agreement upon 20 days’ notice. Further, it was providéd that, if either of the bridges became uncovered, the plaintiff should be expected to cover said bridge from the bridge which might have ice, in such manner as it thought best, and for such transfer it should receive, in addition to the 10 per cent., an additional allowance of 50 cents per ton, such transfer to be made in an economical manner. The last clause was this: “In case both of said bridges are out of ice at one time, they shall be. covered from such of oxxr bridges as may be provided and in manner aforesaid.” It was alleged in the complaint that the plaintiff performed all the obligations assxxmed by it under the agreement, but that the defendants neglected and refused to furnish ice to be sold over the wharf, and bridges, excepting prior to about the 10th day of September, 1890, and that after such date they wholly neglected to furnish ice, as reqxiired by the terms of the agreement; that, by reason of such neglect, the plaintiff was compelled to and did cover the bridge mentioned from other bridges at which it had ice, from time to time, to the amount of about 6,000 tons, and that the transfer was made in an - economical manner; that the defendants have paid nothing to ■ the plaintiff either for the business carried on, or for furnishing ice to cover the bridges; and that the agreement has never been canceled.

Taken as a whole, the written instrument constituted a contract between the parties to enter upon the business of selling ice. The ice was to be furnished by the defendants, and sold by the plaintiff at its wharves, and, if they failed to furnish ice to cover the bridges, the plaintiff was to cover them, and receive 50 cents a ton for so doing. We assxrme that the word “cover” is used in the agreement in the sense of furnish, and that the defendants were under obligation to furnish ice at the bridges every day to continúe the business in operation. Such being the contract, the failure of the defendants to furnish ice at the bridges constituted a breach, and the damage therefor is fixed at 50 cents a ton. In this view the complaint states a cause of action, and the judgment should be affirmed, with costs. All concur.  