
    Harry Secor, Respondent, v. Ardsley Ice Company, Appellant.
    Second Department,
    June 4, 1909.
    Contract — price of ice — consideration — practice — direction of verdict — waiver of irregularity.
    Where plaintiff purchased a retail, ice. business from defendant and as part of the written contract of purchase agreed to buy his ice of the defendant at two dol- • lars per ton, and for four years the plaintiff bought and the defendant sold ice at the price fixed, the- defendant cannot during the life off the contract raise the price for ice.
    Where the contract was imder seal and recited a consideration, the contention that it was invalid because defendants did not agree to sell ice at two dollars per ton is without, merit, and the plaintiff may recover the; difference between the price he was compelled to pay and the agreed price.
    It is irregular for a judge'to direct a verdict after the dismissal-'of the jury-and the close off the term at which the -case was tried, hut such irregularity is. not important in a case where plaintiff was either entitled to recover the full amount claimed or nothing, • and both parties moved for the direction of a verdict, and neither asked to go to the jury on any question of. fact.
    Such a case is not so difficult and extraordinary as to justify an extra allowance, and a provision therefor in the judgment will be:stricken.oiit.
    Appeal by the defendant, the Ardsley Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the" clerk of the county of Westchester on the 10th day of April, 1908, upon the verdict of a jury rendered by direction of the court, and also, from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Samuel Roberts Taylor [Joseph L. Glover with him on the brief], for the appellant.
    
      Wilson Brown, Jr., for the respondent.
   Woodward, J.:

On the 1st. day of May, 1902, the plaintiff entered into a written contract with the defendant for the purchase of a retail ice business in the villages of Dobbs Ferry, Ardsley, Hastings and Irving-ton for a consideration of $2,500. In connection with this purchase, and as a part of the contract, the plaintiff, as party of the second part, agreed to and with the party of the first, part to purchase from said party of the first part all the ice that he will use in the continuance of said retail business * * * at two dollars ($2.00) per ton during the continuance of the lease of the party of the first part with Drexel, Morgan & Company for Woodlands, provided the said term shall not extend beyond January first, 1907, and provided always that the said party of the first part shall have such, quantities of natural ice for delivery to the party of the second part as shall be necessary for him in his said retail business, and the party of the first part shall have the option of delivery pf said natural ice to the party of the second part for his said retail business at either the ice houses at Woodlands Lake or the siding of the New .York and Putnam Railroad at Ardsley station in the village of Dobbs Ferry, and the said party of the second part shall pay for the said natural ice delivered under this agreement on Tuesday of each week.” It was further agreed on the part of the party of the first part that it would not engage in the ice business in the villages named during the continuance of the agreement. This contract not only recited a consideration, but it was under seal, and the contention of the defendant that it is invalid because of the alleged fact that the defendant did not agree to sell the ice at two dollars per ton, is without merit. The plaintiff entered into possession of the plant of the defendant in the villages named under the contract • for four years the defendant delivered ice to the plaintiff for his retail business at the rate of two dollars per ton, the plaintiff duly paid for the same at that price, and a careful reading of the contract, in its entirety,, forces the conclusion that this was exactly what the parties contemplated and wliat they have expressed. In 19 06 ice advanced in price. The defendant delivered ice to the plaintiff and sent hitn a bill at four dollars per ton. The plaintiff protested in Writing, asserting his contractthe defendant repudiated the contract. The plaintiff tried to get ice elsewhere, but found he could not purchase it as cheaply as of the defendant. Still insisting on. his contract, and paying all bills under protest, the plaintiff purchased ice of the defendant during the year, then brought this action to recover for the breach of the contract, and, he has a judgment for the.difference between the contract price which lie agreed to pay and the price which he Was compelled tó pay. The principle involved is too well established to require discussion, and the rights of the parties depend wholly upon the contract. (Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367, 373.) The contract, as we have already suggested, is a valid contract between the parties ; it was conceded that the contract between the defendant and Drexel, Morgan & Co. was in force at the time, and were it not for a question arising ' upon the' disposition of the case, we should be content to leave the matter upon the opinion of the learned court at Trial Term.

When defendant rested, defendant’s counsel moved for the direction of a verdict, stating various grounds.' Plaintiff’s counsel likewise moved for the direction of a verdict. With both these motions pending the court said: “ I will direct a verdict and take, your briefs as to how the verdict should "be directed, whether for the defendant or for the plaintiff. In other words, I will direct a. verdict now, but whether it shall be for the plaintiff, or for the defendant I will determine after reading your briefs.”' The jury was then discharged, and on the thirtieth.of March, subsequent to the end of the term' at which the case- was tried, the learned- trial justice Wrote ' ■a memorandum and directed a verdict for the plaintiff for'the full amount demanded, with an additional allowance of five per cenitthereon. It is now urged by the defendant that the court could not direct a verdict after the jury had been dismissed and after the close of the' term, and this is probably technically correct; but where both parties. move for the direction of a verdict, and neither party asks to go to the jury on any question of fact, there is, in effect, an agreement that the court may determine the facts and the law, as though the jury had been waived in the first instance, and the mere form of the verdict, in a case where the plaintiff was either entitled to recover the full amount claimed or nothing, is not important. Both parties acquiesced in the proposition of the court, which, it is claimed and not denied, was at the request of defendant’s counsel that he might submit a brief, and it would be a perversion of justice, to now permit the result to be disturbed because of any mere irregularity.

We are persuaded, however, that this was not such a difficult and extraordinary case as to justify the granting of an extra allowance, and the judgment should be modified by striking out this provision, and as so modified the judgment and order appealed from should be affirmed, without costs.'

Jenks, G-aynor, Burr and Miller, JJ., concurred.

Judgment modified in accordance with opinion, and as so modified judgment and order affhyned, without costs.  