
    Philip D. Armour et al., Plff's, v. The Cayuga Lake Ice Line, Def’t.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed October 23,1891.)
    
    Contract—Sale of ice—Construction.
    Defendant entered into a written agreement in February, 1889, to furnish to plaintiffs merchantable ice not exceeding 500 tons, as ordered, in quantities not less than ten tons at one order. The contract provided that during the time that ice was being harvested from the lake it should he furnished at fifty cents a ton, and when furnished from storehouses at one dollar a ton. It was further provided that if merchantable ice could he harvested from the lake during the winter of 1889-90 defendant would sell the ice direct from the lake at fifty cents, held, that the contract was not limited to the year 1889, but extended to the year 18ti0, unless the whole 500 tons had been sooner delivered.
    Motion by the defendant for a new trial on exceptions taken at the Monroe circuit in March, 1891, and ordered to be heard at the general term in the fir&t instance.
    
      W. W. Webb, for def’'t; Hubbell & McGuire, for pl’ffs.
   Macomber, J.

This action is to recover damages for a breach of a written contract, as follows: “ Memorandum of agreement made this February 21,1889, by and between the Cayuga Lake Ice Line, of Rochester, FT. Y., of the first part, and Armour & Company, dealers in meats, with a branch office at Rochester, FT. Y., parties of the second part, witnesseth:

“ That the party of the. first part hereby agrees to furnish to the parties of the second part, ice, of a good merchantable quality for general use, at the times and .places and quantities and prices as follows, to wit: All ice to be furnished at such times and in such quantities, of not less than ten tons at any one order, as said parties of second part may desire, and upon a notice of not less than three days. Said ice to be delivered on the cars at the beef refrigerator of said parties of the second part, at the corner of Jones and Center streets, in the city of Rochester, N. Y., at the following rates:

“All ice ordered by said parties of the second part of said party of the first part, as aforesaid, during such times as ice is being harvested by the party of the first part from the waters of Cayuga lake, to be furnished at the rate of fifty cents per ton of 2,000 pounds. Ice furnished by the party of the first part to the parties of the second part from the storehouses of said first party to be furnished at the rate of one dollar per ton.

“ It is agreed that if merchantable ice can be harvested from the waters, of Cayuga lake during the winter of 1889-90, said first party will sell to said second party ice direct from the waters at fifty cents per ton of 2,000 pounds.

“ It is understood and agreed that, the total amount of ice to be delivered by said first party to said second party under this contract shall not exceed five hundred tons.

“ Parties of the second part agree to purchase ice of the party of the first part upon the aforesaid terms and conditions.”

Under this contract the plaintiffs ordered and received from the defendant in the year 1889, 268 tons of ice. It appears that there was no ice harvested by the defendant in Cayuga lake in the year 1889-90, nor did the plaintiffs demand any ice in that year until April 26, 1890. This demand was not acceded to by the defendant, nor were subsequent demands of like nature. For such refusals this action is brought to recover the additional sums of money which the plaintiffs were compelled to pay out to supply their need of ice during the period which they claim was covered by the contract Of the amount of such expenditure to' other persons there seems to be no question-; so that, if the construction placed upon the contract by the learned judge at the trial is correct, the judgment upon the merits of the case should be affirmed.

It is argued by the learned counsel for the defendant that the true construction - of the contract is that no ice was to be delivered after the year 1889. The first paragraph of the contract does not name the time during which the agreement should be operative, except that it was the duty of the defendant to furnish it at such times and in such quantities of not less than ten tons at any one order as the plaintiffs should desire, and for which notice should be given, not exceeding five hundred tons in all. But in fixing the prices it is stated that during such times as ice may be harvested by the defendant from the waters of Cayuga lake the ice should be furnished at the rate of fifty cents per ton, while ice not so harvested and which was furnished from the storehouses of the defendant was to be paid for at the rate of $1.00 per ton. But the most important part of the agreement relating to the matter in dispute is the clause above quoted to the effect, that if merchantable ice could be harvested from the waters of Cayuga lake during the winter of 1889-90, the defendant would sell to the plaintiffs direct from those waters at the rate of fifty cents per ton. This clause of the contract, it seems to us, necessarily implies that the time to be covered by the deliveries was not limited to the year 1889, but extended to the year 1890, unless the whole five hundred tons had been sooner delivered, and that consequently the contention made in behalf of the plaintiffs is correct

The motion, therefore, for a new trial should be denied.

Motion for a new trial denied, with costs, and judgment ordered for the plaintiffs on the verdict

Dwight, P. J., and Lewis, J., concur.  