
    Walter M. Wheeler et al., Resp’ts, v. Elizabeth A. Britton, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Sale—Failure to accept.
    Plaintiffs offered to sell 3,500 or 4,000 tons of ice to defendant if the houses held that much, which offer was accepted. One of the houses having burned and defendant holding them to the contract, plaintiffs fur nished other ice, part of which was accepted, but finally defendant refused to take any more. In an action for breach of the contract the evidence as to whether the ice tendered was good, merchantable ice was conflicting. Held, That the contract was complete under the letters, and did not specify any particularly located ice, and that a verdict for plaintiffs would not he disturbed.
    3. Same—Evidence.
    . Declarations of other ice consumers as to the quality of the ice are inadmissible as hearsay; the consumer should himself be produced.
    Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motionuor new trial. Action for breach of contract for the sale of ice. The contract was made by letters, of which the following are copies:
    “Mrs. E. A. Britton: “New York, July 24, 1889.
    “ I will deliver you not less than three thousand and five hundred tons of ice, and four thousand if it holds out that much, alongside of dock at Staten Island, beginning August 15th, or when notified one week in advance of time wanted, at three dollars per ton, weighed out. I to furnish weigher; you to pay him his wages. Boats not to be detained over three days. Payment, cash on delivery. W. M. Wheeler & Sons.”
    “ West New. Brighton, S. I, July 24, 1889. ' “Mr. Y^alter M. Wheeler & Sons:
    “ Dear Sirs—Am in receipt of your letter of this date offering to deliver 3,500 to 4,000 tons of good ice, if the houses hold that amount, alongside of docks at Staten Island, beginning August 15th, or when notified one week in advance of the time wanted, at three dollars per ton, weighed out. You to furnish weigher; I to pay him his wages.
    “ Boat, not to be detained over three days. Cash on delivery. “I would hereby accept your offer and agree to the same.
    “Very respectfully yours,
    “E. A. Britton.”
    
      Walter R. Beach, for app’lt; Merritt & Ryan, for resp’ts.
   Barnard, P. J.

The plaintiffs aver in their complaint for a cause of action against the defendant that she agreed with the plaintiffs in July, 1889, to buy of them from 8,500 to 4,000 tons of ice at three dollars per ton on the dock at Staten Island. That the plaintiffs agreed to sell and deliver that amount at said price. That after about 1,500 tons were delivered the defendant refused further to carry out the contract. That the breach of contract on her part occasioned a loss to the plaintiffs of $3,000. The defendant by ¿her answer put in issue the contract as stated. That the ice was to be taken from an ice house which was consumed by fire before the first delivery. That the ice was to be good, pure ice from ten to thirteen inches thick. That when the ice house burned down the plaintiffs put an end to the contract. That a new contract was made for one boat load at $2.50 a ton, and subsequently to its delivery still another contract was made at $3.00 per ton similar in quality to that called for by the first contract. That the ice delivered under this contract was pure, and that the defendant finally refused to receive the ice which the plaintiffs offered to deliver. Upon the trial before the jury of this issue proof was given tending to show a contract as claimed by plaintiffs; that one ice house did burn down, but that defendant required the plaintiffs to buy other ice to carry out the contract. That the plaintiffs 'did buy other ice and that it was good ice. That two boat loads of this purchased ice was delivered at $2.50 a ton so that the defendant could see what it was in quality. That the ice was deemed good by defendant and the second boat load taken'" on, but that was paid for at the original rate of three dollars per ton and the plaintiffs agreed to fulfil the contract.

In October, 1889, the defendant refused to receive ice under the contract. A loss of over $2,000 was shown. The defendant gave evidence tending to show that the ice was not good. The witnesses were numerous and the evidence very conflicting on this issue as to the condition of the ice delivered and tendered. The issue sent to the jury was whether “good merchantable ice” was sent under the contract. The jury have found that the ice was such as the contract called for; was as good as that in the burned ice house. The letters which formed the contract did not specify any particularly located ice and under it the plaintiff was bound to deliver not less than 3,500 tons. The ice was in certain houses when the contract was made and part of the houses were burned. The defendant was right in claiming the minimum amount called for at all hazards. Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y., 487.

It is not-necessary to examine in detail the exceptions taken. A class of such exceptions rests upon the claim that the ice sold was in certain houses. Another class of exceptions rests upon rejection of oral proof of conversations before the contract was made, ffhe contract was complete under the letters. Doughty v. Manhattan Brass Co., 101 N. Y., 644; 1 St. Rep., 53.

; Another class of exceptions is based upon exclusion of declarations of ice consumers who obtained the ice in question. Such evidence was hearsay. The consume;1 should himself have been produced. Another class of exceptions refers to rulings which could do no harm and no judgment can properly be reversed for exceptions taken when the subject of them was not injurious to the case.

The judgment and order denying new trial should therefore be affirmed, with costs.

Dykmar" and Pratt, JJ., concur.  