
    John Clark, Resp’t, v. Frank H. Clergue, Impleaded with Others, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25,1888.)
    
    Contract—Damages for breach—Liquidated by contract—Amount FIXED SHOULD BE OBSERVED.
    By the terms of the contract in question, the amount either party upon breach of the contract “ should forfeit and pay to the other, as liquidated damages,” was fixed at a certain amount, which was a reasonable provision. It was extremely .difficult to fix the amount of damages resulting from a breach. Held, that this provision should have been observed by the jury in fixing the damages for a breach.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered by a jury at the Westchester county circuit, and from an order denying a motion for a new trial on the judge’s minutes.
    
      Henry Daily, Jr., for resp’t; Harriman & Fessenden, for app’lts.
   Barnard, P. J.

This action is brought to recover damages for a failure to deliver ice according to contract. The contract is signed upon the part of the defendants who were to deliver ice, in the name of Stewart, Clergue & Co. The complaint avers that the defendants Stewart, yvere included as contractors, because they were members of the firm of T. J. Stewart & Co. That complaint was not served on any defendant except Clergue, and he avers that he and still another Stewart, who is not made a party defendant, were the contractors. Upon this issue the jury have found for the plaintiff. It is proven that Clergue reported that the firm of T. J. Stewart & Co. were contractors with him. A witness, Newman, testified to the fact that T. J Stewart & Co. were interested in the contract. It is stated by Clergue that he did not state that T. J. Stewart & Co. were his partners, but that “one of the Stewarts was,” and that T. J. Stewart shipped his ice.

The evidence as against Clergue is overwhelming that he represented T. J. Stewart & Co. to be his partners. It is sufficient without his testimony, to make out the intent of T. J. Stewart & Co. That firm admitted it in their letters so far as that a jury could so find. The evidence establishes a breach of contract on the part of the defendant.

The only proof tending to show a breach by plaintiff consisted of a request that he would receive ice in advance of the stipulated terms of the contract, and he replied that he had no room to comply. This was not a breach of contract by plaintiff. There was no refusal to accept ice according to agreement, nor a waiver of its terms. The remaining question is one of damages. The contract provides for $1.50 per ton as liquidated damages for the number of tons not shipped or not accepted.

The court held that the jury was to observe this, but were to give the difference between the contract price and the sum paid to supply ice m its place, and that this was shown by the evidence to be 90 cents per ton.

The stipulated sum was a reasonable provision and should have been observed. The case shows that it was extremely difficult to allow for wastes of ice, and to estimate freight and labor, so as to get at a just compensation in damages ; and the chief difficulty, upon the appeal, is whether certain things should not be considered in abatement of the amounts which plaintiff claims should be allowed to him in getting at the costs of the replaced ice.

The liquidated damages were intended to settle the question after breach by both parties. The contract was peculiar. The ice was in Maine, and was to be shipped to Brooklyn in certain amounts each month. There was a question of freight and wharfage. The plaintiff bought the ice to sell again. The defendants owned the ship, and the freight was to be paid by plaintiff on the arrival of the cargo. It.is manifest that a breach may well involve a loss in the cargo, a loss by demurrage, a loss in freight and a loss in the use of the vessels.

On plaintiff’s part a breach means a loss in the replacement of ice for his business and a loss in the business itself by; failure to receive the ice. Again the fluctuations in the price of ice are to be provided against, and the parties defendant had the right to limit the possible loss.

Assuming that the jury found a larger sum than the most favorable evidence for the plaintiff would warrant, it is not just to give a new trial for that reason.

If we are right in respect to the clause as to liquidated damages, the verdict, if one was found, would be greater than the first one. Callahan v. Gilman, 107 N. Y., 360 ; 13 N. Y. State Rep., 901.

The judgment should, therefore, be affirmed, with costs. Pratt, J., concurs ; Dykman, J., not sitting. '  