The New York herald., 1876-02-09

It should be bound to furnish proportonately. In
1870 the ice company stored It's cchouses l47 0I
tons Of new ice II had also supply OF other large
quantities OF old ice the icehouses ice barscs
and in stacks ice stored joint account with the
Washington Ice Company, and ice secured by purchase
from various parties. In May, 1870, the ice company
notified Kemp Co., that u could furnish them but 5S7
tons daily, instead Of tue 2 900 tons contracted to fur
nish A written acceptance OF this amount of ice
given by Kemp Co. on the same terms as for the
original amount contracted Tor The contract prices
81 and 81 so per ton, but from time TO time Kemp
4 Co. pad from SIS to SO per ton, the same was
paid by parties having no contract In April 1875.
Kemp & Co brought suit against the ice company for
the rescsson OF the agreements OF Nav 25 1870
the ground OF fraud, and Tor damages The Court at
Special Term found for the plaintiffs, setting aside the
agreements as fraudulent, and finding as questions oi
fact that the defendant called to lay up iull
supply OF for 1870 within the meaning OF the
tracts with the plaintiffs Judgment rendered for
$6+ s9l 81 in favor Of plaintiffs An appeal was taken
from this judgment TO the General Term OF the Court
OF Common Pleas. and decision has just been rem
dered in most able, clear and comprehensive opinion
by Judge LaTremore
In his opinion Judge Larremore considers the ques-
tions presented by the appeal In the following order
First the construction OF the contracts Of February 2
1864. and October 25 1868, and the alleged breach
thereof by the defendants; second, the validity and
effect OF the agreements of May 25 1870, as defea-
sancc or modification OF said prior contracts and thrd
the measure OF damages resulting from said alleged
breach. The true Interpretation OF these contracts
must be sought in the intention OF the parties as ex
pressed therein without violating the rules Of law or Ian
OF ts part OF the contract as was WITHIN the range OF
human possibility The agreements in question: a
shown, were running execulory contracts covering
period OF years made between ice dealers and in con-
temptation OF the necessary demand and supply for the
purposes of trade Each OF the parties therefore
should be held TO such Interpretation as was cOntem-
plated by them when said contracts executed
AS the plaintiffs bound to take, the defendant
was bound TO furnish the ice agreed, subject only TO
the poss BILE contingency OF an inability 10
lay up full supply. There is reference
or restriction 20 the place or places from
Wl he of In ha akpn
that the same was to be laid up in houses at all
For this reason the construction upon this point must
be contra proerenum, and as 1t has been established
that in the year 1870 defendant had sufficient ice
meet all the demands of it's contract dealers, the
clusion must follow that in the year last mentioned no
such contingency contemplated by and provided
for in said contracts had happened As TO the validity
and effect OF the subsequent agreements he holds that
they are no bar TO a recovery In this action good
share OF the opinion is given the concluding point
whether the amount for which judgment was rendered
is the proper of damages the The
question whether the 81 Per ton under the con,
agreed TO be paid the one part and forfeited
the other for on-takng or nondefvery OF ice is TO
be regarded penalty for forfeiture stipulated
damages a breach of the contract IL discusses at
length the principles involved, citing point
alone no less than thirty-sx cases and IN another
making twenty citations 1t was manifest that the
plaintiffs contemplated agreed upon basis Of
compensation thatwould give the defendant the benc
fit of its fraud All that plaintiffs claimed in their
was the difference between the contract price
and the wholesale market price ($l6 per tom
the ice not delivered under SAID contracts. This
difference estimated at Sl3 90 per upon Alb
tons contract and Sl4 per ton on the other,
making $3S s57 so in ALL with interest thereon from
January l. 1871 After reviewing all the authorities
Judge Larremore holds conclusion, that nothing is
found in these authorities to vary the rule that in
breach of contract Tor the sale and delivery OF an article
OF general and consumption the damage recover
able is the difference between the contract price ana the
market price at the time OF the breach Upon this
legal basis. and throwing out profits, contingent and
speculative, he fixes as tho measure OF damages
$4S, l41 IL