
    Loretta H. Randall, Resp’t, v. The National Ice Co. of New York, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Contract—Modification.
    Plaintiff, through her husband as agent, entered into a written contract to sell 800 to 900 tons of ice to defendant at §3 per ton railroad weight. The railroad refused to weigh the ice, but delivered weigh bills for the purpose of fixing freight charges. Plaintiff claims that after the railroad refused to weigh, she obtained consent of defendant to weigh a few cakes of ice to ascertain the approximate weight and by keeping accurate account of the cakes fix the total weight of the ice delivered; while defendant insists that the railroad weigh bills furnish the weight as agreed. Held, that if defendant consented to the modification of the contract as claimed, and plaintiff acted upon it and defendant received the ice under it, it would be estopped from refusing to pay for the ice or from fixing any other method of determining the quantity, and that whether such modification was in fact made was a question for the determination of the jury.
    3. Same— Sale—Excess of delivery.
    Where a vendee receives and retains goods in excess of the amount called for by the contract, he is liable to pay for the same, and, in the absence of any agreement to the contrary, at the price stipulated in the contract.
    Appeal from a judgment rendered upon the verdict of a jury and from an order denying a new trial made upon the minutes of the judge.
    
      Beckwith & Wheeler (George H. Beckwith, of counsel), for app’lt; Pratt & Logan (Louis W. Pratt, of counsel), for resp’t.
   Mayham, P. J.

The complaint alleges that the defendant is a. corporation, and that the plaintiff sold and delivered to the defendant 1,476 tons of ice, for which the defendant agreed to pay plaintiff three dollars per ton, and that there was due plaintiff therefor the sum of $2,500. The answer admits that the defendant is a corporation, but denies that plaintiff sold defendant ice and that the defendant is indebted to plaintiff therefor. The answer further alleges that the defendant contracted with one W. C. Randall, and in substance alleges that the plaintiff is not the real party in interest The reply of the plaintiff alleges that the defendant purchased the ice in question of W. C. Randall as agent for the plaintiff, and denies that the plaintiff is not the real party in interest.

The plaintiff proved that W. C. Randall was her agent, and that' she carried on the business of harvesting and selling ice in the winter of 1890, and that as such agent he received from the defendant an order, of which the following is a copy:

“Hew York, 'February 6, 1890.
“Bought of Mr. W. G. Randall, Agent, about 800 or 900 tons of ice delivered at Weehawken, H. J., in lots of 10 to 15 cars per day, at the rate of $3.00 per ton, R. R. wt. Rouses Point, said ice to be shipped daily commencing Monday, February 10, 1890.
“ Payment for same when barge load is delivered.
“¡National Ice Company of ¡New York,
“ Per W. ¡N. Bavier, Gen'l Manager.
To be good merchantable ice not less than 10.
“W. ¡N. B.”

At the same date the plaintiff by her agent executed and ■delivered to the defendant a paper of which the following is a copy:

“ ¡New York, February 6, 1890.
“ Sold to ¡National Ice Company about 800 or 900 tons of ice delivered in cars at Weehawken, ¡N. J., in lots of 10 to 15 cars per day at the rate of $3.00 per ton R. R. wt. Rouses Point.
“ Said ice to be shipped daily commencing Monday, February-10, 1890. Payment for same when barge load is delivered. To be good merchantable ice not less than ten inches.
“ W. C. Randall, Agent,
Plattsburgh, N. Y.”

Soon after making the above memorandum the plaintiff commenced to ship ice to the defendant, and claims to have shipped 1,314 tons, 497 pounds of ice. The ice was not weighed by the railroad company, that company refusing to weigh the same, but for the purposes of fixing freight charges rendered its weigh-bills at the rate of 30,000 pounds per car for 66 cars amounting to 990 tons of ice, making a difference of 324 tons which is the subject ■of this controversy.

The plaintiff insists that after the railroad would not weigh the ice she obtained consent of the defendant to fix the amount of the ice to be delivered by weighing a few cakes of ice so as to ascertain approximately the average weight, and then by keeping an accurate account of the number of cakes fix the total weight of all ice delivered, and she claims to have done this, and thus to have ascertained the quantity of ice delivered. The contention of the defendant is that the weigh-bills of the railroad furnish the railroad weight as contemplated by the memorandum of agreement between the parties and that such written contract must control.

There is sufficient evidence to establish that the quantity of ice •charged for by the plaintiff was delivered, if we adopt her method of fixing the amount, and if we adopt the defendant’s theory, then the railroad weight attainable is that furnished by thp railroad weigh bills used for fixing the freight charges.

The first contract between these parties was in writing, and would bind the parties both as to the manner of weighing this ice and as to the amount to be delivered under it, unless subsequently modified by the parties, and as modified acted upon by them' or one of them relying upon such modification. It is quite true that parties may insert any provision they please provided they violate no principle of law, Allen v. Ins. Co., 123 N. Y., 13; 33 St. Rep., 216; but it is also true, as said by the learned judge in his charge to the jury in this case, that a written contract which imposes conditions upon one party or the other may be modified by paroi, and if such modification is acted upon by both parties the party who has induced the other to act in pursuance of the modification cannot afterwards deny that the change in the contract was properly made. If, therefore, the defendant agreed when it was ascertained that the railroad company would not weigh the ice, that the plaintiff might weigh the cakes and average the weight, and thus determine the quantity, and the plaintiff adopted that method, and acted upon it to the knowledge of the defendant, and the defendant received the ice under it, the defendant would be now estopped from refusing to pay for the ice or from fixing any other method of determining the quantity.

Whether such a modification of the contract was or was not in fact made and acted upon by the parties was, we think, a question of fact which was properly submitted "to the jury by the trial judge.

The defendant also insists that the maximum amount of ice -called for by the contract was 900 tons, and that they are not liable for the excess. But they have received the whole amount of ice sent and have paid the freight and charged it to the plaintiff for 990 tons, thus conceding a receipt of ninety tons more than called for by the written contract.

Having received this ice in excess of the amount called for by the contract, the law would hold the defendant liable to pay for the same and, in the absence of any agreement to the contrary, at the price stipulated in the contract.

The questions of the modification of the contract and of the amonnt of ice received under the same were under proper instruction from the trial judge submitted to the jury as questions of fact and the verdict of the jury is sustained by the evidence. On the whole case we see no error committed by the court for which this judgment can be reversed.

Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.  