New York Ice Co. v. Parker

I. The counsel for the defendant moved to dismiss the complaint on the ground that the plaintiffs had not proved the sale and delivery of the ice; the motion was denied and an exception taken. The plaintiffs had proved that the defendant had called, and had gone over the figures of the bills, with the secretary of the company, anji had admitted them to be, in the main, correct; the sum total of the balance was $4,507, *306and some cents. He stated that there was no objection to the bill; this was in September, 1858. Before the arbitrators, also, there was no dispute as to the amount of the bill. This exception is clearly untenable.

II. The plaintiffs’ 'counsel objected to any evidence in regard to the first counterclaim, which is set forth in the second allegation of the answer. The court sustained the objection, and the defendant’s counsel excepted to the ruling of the court. Whatever cause of action could by possibility have arisen to the defendant, upon the facts stated in this counterclaim, would arise against his associates in the former company, or partnership, as individuals, and upon a breach of their contract with him. This took place in the fall of 1856. In another part of his answer he states that the plaintiffs contracted to sell ice to him, to enable him to perform his engagements, involving thereby the admission that he contracted with them to purchase ice. Thus the case is one of an alleged demand, against several individuals, formerly partners with the defendant, offered to be applied in extinction of a demand by a corporation with which he has dealt, because some, or most of the corporators, were members of the former association. The learned judge was clearly right in his ruling upon this point. (Peabody agt. Bloomer, 3 Abb. R., 353.)

The rulings connected with the third clause of the answer, being the second counterclaim, gave rise to the most of the defendant’s exceptions. Upon the examination of Mr. Thorp, president of the company, he was asked by the defendant’s counsel if the company had stopped the delivery of ice to Parker at one time, and was answered they had; and was again asked by the same counsel why he stopped delivering ice to Parker. The witness replied that an explanation was necessary; that there was a custom of the trade by which “ we” agreed to sell at certain prices. The counsel of the defendant objected^to testimony on the subject of customs of the trade; the court overruled the objec*307tion, and directed the witness to give the proposed explanation ; and the counsel for the defendant excepted to it. The witness stated that Parker, with others, had agreed to sell at certain prices, and upon failing to do so there was a certain penalty. Parker broke the agreement, and the penalty was the cutting off of his supply of ice. There was a board to try such cases, and Parker appeared at the board. The evidence elicited by the defendant’s own question is, therefore, in substance, that Parker had entered into an agreement which he had violated, and this justified the stoppage of the ice; that there was a board or body constituted to inquire into such matters, and he recognized it. In truth, there is nothing of evidence as to custom proper stated by the witness. So in regard to the exception as to the terms of the arrangement between the dealers having been made known to Parker, and of a committee trying causes of a breach of such arrangement, and other exceptions of a similar nature. Parker entered into the arrangement, became a party to the conditions, and brought a complaint himself. By an express contract he submitted not only to the conditions, but to the mode of ascertaining the violation of them. All testimony, therefore, under this head, was rightly admitted. Other exceptions go to the refusal of the judge to admit questions as to how many wagons the defendant was employing in his business when the ice was stopped; to what contracts he then had for the delivery of ice; what was the effect upon his business generally, and as to his loss of customers. ° Testimony as to the amount of ice he received from day to day from the company, and testimony as to the retail price at which he sold it to his customers were admitted.

There is one general view which renders the consideration of these several exceptions in detail unnecessary. There was no evidence sufficient to justify a finding that the defendant knew of, and agreed to be bound by the *308rules as to encroaching upon other seller’s rights, and as to underselling, and that he had violated them. The issue was raised in the reply. We are to assume that the judge charged properly as to all the points in issue; hence that this was submitted to the jury to answer; and we think the verdict has answered that the plaintiffs were warranted in stopping the ice, because we think that no allowance has been made to the defendant on account of this counterclaim.

The verdict was for the sum of $4,895.96; the balance adjusted and proven as of the first day of January, 1859, was $4,507.55 ; the interest to the tenth day of November, as deposed to, was $584.36, making an aggregate of $5,093.89. There is an error in the figures as to the interest, probably, which, however, is of no importance. It is not beyond a doubt that the amount claimed for services and disbursements at New Rochelle, by the defendant, was allowed; the reply admits the services, contesting the value only; the claim was proven at $173.50 ; in the answer it is stated at $174.38. If the jury deduct this $174.38 from the principal of the plaintiff’s demand, $4,507.55, and computed interest on the balance from January 1st, 1859, to the 10th day of November, 1860, the sum will differ, by my computation from the verdict, by a sum less than two dollars of excess, being $4,897.50. The counsel of the plaintiffs states in his points, that this counterclaim was allowed in the computation, and we think this was the case. The jury, then, could not have allowed anything for the counterclaim, arising from the stoppage of the ice ; and if so, must have rejected it, because the demand was not established. It is to be regretted that the case has not so much of the charge of the judge, as to these points, as would have removed all ambiguity from them.

Another and remaining exception to be noticed relates to the reference made by the witness to the ledger. It was *309only to refresh, by his own entries, his memory as to the aggregate amount of the ice furnished; the amount or balance which he thus ascertained was stated to the defendant ; the accounts were shown him, and the sum admitted to be due. The exception cannot be sustained.

The judgment must be affirmed, with costs.