
    The Independent Ice Association, Resp’t, v. Wallace C. Andrews, Impl’d, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    COSTBACT—BbEACH.
    The complaint alleged that plaintiff and the defendants entered into an agreement in writing which recited that plaintiff held a lease of two wharves, used as ice bridges, and agreed that if defendants should furnish ice to be sold over these bridges until a specified time it would furnish free wharfage, hoist and do all business connected with selling the same; the plaintiff was to have ten per cent of the gross receipts each day; and provided that if either of the bridges became uncovered plaintiff would be expected to cover it from the bridge which might have ice and receive for the transfer fifty cents per ton, and that in case both bridges were out of ice atoone time they should be covered from such of plaintiff’s bridges as may be provided and in the same manner; that after a specified time defendants neglected and refused to furnish ice, and plaintiff was obliged to cover them from its other bridges, and that defendants had paid nothing therefor. Held, that the complaint stated a cause of action; that the written agreement constituted a contract to enter upon the business of selling ice; that defendants were under an obligation to furnish ice at the bridges every day and their failure to do so constituted a breach.
    Appeal from interlocutory judgment overruling demurrer to complaint.
    
      James H. Hawes, for app’lt; Potter & Potter, for resp’t.
   Dykman, 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 until the 1st day of April, 1891, the plaintiff will furnish free wharfage, hoist and do all business connected with the selling of such ice, and offered all the facilities in its .power to increase the trade that may be obtainable over those docks.

Then it is provided that the defendants shall have the privilege of putting a bridge boss to represent their interest, and that the weighing should be done by their weigh-master 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. H. 0. Eldridge, representing the plaintiff, shall be paid for daily by check of Eldridge.

The plaintiff was to receive ten 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 ten 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 cancelling the agreement upon twenty days notice.

Further it was provided that if either of the bridges became uncovered, the plaintiff should be expected to cover said bridge from the bridge which might have, in such manner as they thought best and for such transfer it should receive in addition to the ten per cent, an additional allowance of fifty 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 our bridges as may be provided and in manner aforesaid.”

It was alleged in the complaint that the plaintiff performed all the obligations assumed 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 required 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 six thousand 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 fifty cents a ton for so doing. We assume 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 continue 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 fifty cents a ton.

In this view the complaint states a cause of action, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  