
    Homedas Riendeau, Resp’t, v. Roselle Bullock et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Contract—Executory.
    Plaintiff contracted to sell certain ice to defendants, the latter agreeing to take the same during the August following, and to pay $3.25 per ton. The ice was to be delivered to defendants on their canal boats and weighed. The contract also contained a covenant that all ice put on defendants’ boats should be good, sound, clear, merchantable ice. Held, that although the words “hereby sell” were used in the writing between the parties, the title to the ice remained in the plaintiff until delivery to defendants.
    2. Same—Rescission.
    In such case defendants failed to take the ice away in August as provided in the" contract, and telegraphed plaintiff asking “ whether you intend to load any more boats at August prices,” to which plaintiff answered that he would load only for 25 cents per ton extra, and defendants answered: “ Cannot pay the advance.” Plaintiff then telegraphed: “Will-load balance at August prices if taken by September 20th. Held, that by plaintiff's refusal to deliver the balance of ice at August price, the contract was rescinded, and defendants having acted upon such refusal, were not. bound to take such balance, notwithstanding the subsequent offer of plaintiff to deliver at August prices.
    3. Same—Construction.
    Such contract required that plaintiff load defendants’ boats within 24 hours after arrival, and forfeit $10 per day on each boat, if he defaulted. Plaintiff took 48 hours to load some of the boats, and the referee held that he had not defaulted, the 24 hours meaning 24 hours of daylight. Held, error; that defendants were entitled to an allowance for such, failure.
    Appeal from a judgment for plaintiff, entered upon the report of a referee.
    Action to recover damages for the breach of a contract for the sale and delivery of a quantity of-ice.
    The contract was as follows, viz.:
    “Memorandum of agreement made this 31st day of May, 1890, between H. R. Riendeau, of Ohambly, P. Q., and Messrs. Bullock, Shaw, Holbrook and Averill, said Riendeau hereby sells and agrees to deliver to said Bullock, Shaw, Holbrook and Averill all the ice in his storehouses 104 ft x 40 and 112 ft. x 36, situate on. land owned by one Char tier on the northeast side of the Chambly canal, about five miles south Chambly, P. Q., such delivery to be f. o. b. canal boats at such storehouses at $2.75 per ton for all delivered to such boats in month of June, 1890, and three dollars per ton for all delivered to such boats in month of July, 1890,. the weight of the ice to be determined by the weigh lock weight, at Waterford, said Riendeau to load all boats within_ twenty-four hours of arrival at said storehouse, and in case of failure to load in such time to pay to said Bullock, Shaw, Holbrook and Averill ten dollars per day on each boat after they have laid twenty-four hours, such ice to be paid for by said Bullock, Shaw, Holbrook and Averill as such cargo is weighed at Waterford, and said Riendeau hereby agrees that all ice put on such boats shall be good, sound, clear, merchantable ice. And also agrees to insure _ such ice to the amount of fourteen hundred dollars, and make insurance payable in case of loss to said Bullock, Shaw, Holbrook and Averill.’’
    
      W. H. Dunn and R. Corbin, for app’lts; E. F. Botsford (George H. Beckwith, of counsel), for resp’t.
   Putnam, J.

By the agreement between the parties as extended plaintiff contracted to sell the ice contained in his two ice houses to defendant, the latter agreeing to take the same during ■the month of August, 1890, and to pay therefor $3.25 per too.

Although the words “ hereby sell ” are used in the writing between the parties, the agreement I think did not pass the title to the ice, but constituted an executory contract of sale.

Before the title could pass, the ice had to be delivered to defendants on their canal boats and weighed. The contract also contained a covenant that all ice put on defendants’ boats should be good, sound, clear, merchantable ice. Hence that character of ice had to be separated from the poorer quality contained in the ice houses. Therefore the title to the ice remained in the plaintiff" until delivered to defendants. Joyce v. Adams, 8 N. Y., 291;. Ward v. Shaw, 7 Wend., 404; Terry v. Wheeler, 25 N. Y., 525; Uhlman v. Day, 38 Hun, 300; Anderson v. Read, 106 N. Y., 333 ; 11 St. Rep., 123; Stephens v. Santee, 49 N. Y., 35.

Whether a transaction amounts to an executed sale, or an executory agreement to sell, often depends upon the intent of the parties appearing from the circumstances of the case. Here the fact that on account of the delay of defendants in taking the ice in’Yuly the price was raised twenty-five cents per ton, and that plaintiff on account of the failure of defendants to remove the ice in August, assumed to raise the price an additional twenty-five cents-per ton, shows the understanding of the parties that the title' remained in the plaintiff.

The defendants failed to take the ice away in the month of August, as provided in the contract as extended. On August 27, 1890, the plaintiff wrote defendants as follows : ‘"The ice was to be all taken before 1 Sept. I have had a great loss in-keeping it-over to tr_y and meet you, so my intendence is if you take it all by the beginning of Sept., say in the first ten days, to make only 25 cents extra on whatever be taken after this month and up to ¿he 10th Sept Please let me know if you accept this offer.”

The defendants on the same day answered : “ As to paying a .further advance, would say the market will not stand it; we cannot get our money back as it is, and rather than pay an advance would prefer after you load the boats we put in this month, that you sell it elsewhere.” On September 4, defendants telegraphed to plaintiff, as follows: “Please wire at once how many tons you will have, and whether you intend to load any more boats than those there now, at August prices.” On September 7, plaintiff answered as follows: “ Will call these four at August figure, and balance twenty-five cents extra, providing you keep going on sending boats.” On September 8, defendants answered as follows:

All rigfu; you need not lo^d any more boats for us, as we cannot pay the advance. Will take the four boats loaded, and now on the way, at August price.” To which the plaintiff on the same day, replied: “ To meet you friendly, will load balance of ■ice at August price, provided you take it by the twenty instant.”

The referee found “ that the act of plaintiff in telegraphing defendants that they could have the balance of the ice after the four •boat loads by paying twenty-five cents additional per ton, providing they took it by the 20th of September, amounted to the expression of an intention to refuse to deliver said balance at the August prices, and under August contract.”

The above conclusion of the referee is sustained by the evidence in the case.

I am unable to see what right plaintiff had to raise the price of ice taken in pursuance of the contract, if he desired to hold defendants thereunder. His proper course was to offer to carry out the contract, and to demand the performance thereof by defendants. He was bound to do this before he could treat the contract as rescinded. Monroe v. Reynolds, 47 Barb., 574; Fancher v. Goodman, 29 id., 315.

When plaintiff received the telegram of September 4, he should have answered, showing his willingness to deliver the ice. He ■could, in his answer, have claimed that he expected to receive such damages as he might sustain on account of the delay of defendants in taking away the ice. And he could have recovered such damages. Dayton v. Rowland, 1 Daly, 446; Dibblee v. Corbett, 9 Abb., 200; Ruff v. Rinaldo, 55 N. Y., 664.

But instead of taking this course the answer of plaintiff to defendant’s telegram was, as found by the referee, a refusal to carry ■out the contract. It amounted to a rescission. He proposed to substitute a new contract for the ice. The defendants could legally act upon his refusal to perform the contract and refuse to take the ice at $3.50 per ton. They were not compelled to enter into a. new contract. Plaintiff having refused to deliver the ice under the contract, defendants were not bound to make formal demand, or tender or offer money to the plaintiff. Anderson v. Sherwood, 56 Barb., 66.

Also, plaintiff, as the referee determines, refused to deliver the-balance of the ice under the contract, and the defendants having acted upon such refusal and sent their telegram of September 8th, were not bound to afterwards take such balance notwithstanding-the subsequent offer of the plaintiff contained in his telegram of the same day.

I conclude that on account of the declination of the plaintiff on September 7th to deliver the residue of the ice under the contract, the defendants are not liable therefor. As to that portion-delivered to and received by the defendants, they having consented to take the same after plaintiff’s telegram of the 7th, are liable to-pay therefor.

Under the contract defendants were clearly entitled to an allowance for plaintiff’s failure to load the canal boats within twenty-four hours, as provided in the contract.

The judgment should be reversed, and a new trial granted, costs: to abide the event.

Mayham, P. J., and Herrick, J., concur.  