The Portland daily press., 1895-02-07

1t Was the Case of William L. Miller of
Bangor VS.. w. &c. Andrews of New York
to Recover for a Cargo of Ice Shipped,
But Which the Defendants Refused go
Accept.
Boston. February 6.-The United State
Circuit Court of Appeals yesterday render ed
q decision in the case of Wallace G.
Andrews ct ais of New York, defendants.
plaintiffs in error vs.. William l.. Miller ct
al of Bangor, plaintiffs, defendants in error.
The judgement of the circuit court for
Maine for S. 437 20 damages and S444 costs
i'll favor of Miller ct al, plaintiffs in that
court, is affirmed. The action was brought
to recover damages for breach BY
Andrews ct al of the contract to return to
the plaintiffs $3.50 ton on 1000 tons of
ice shipped to them at New York. The
breaL consisted in the refusal of Andrews
ct al to accept the ice on arrival in New
York. The Circuit court did NOT treat the
contract between parties as a sale. 1t is
stat ed in some respects it is like ship
ment on joint account, with special terms.
If the contract be regarded as a partner
ship in this particular adventure, those
conditions of copartnership by which the
defendants were to secure to the plaIntiHs
at least $3.50 ton for the ice shipped
and were themselves to bear the losses,
must be regarded. 1t was held that 1t was
better to treat it as special contract &C
oording to its terms, by which the defend
ants undertook, in consideration that the
plaintiffs would ship the ice, to return to
them free of any expense $3.50 ton be-
fore the property should pass out Of the
control and custody of the shippers. The
present action had proceeded upon that
view, and is for damages for a breach Of
such contract.
THAT court held the defendants had
wholly failed to perform their part of the
contract, and they were not prevented by
any wrong on the part of the plaintiffs.
The loss of the plaintiffs from the defend
ants breach, it held, is the same, and the
damages suffered by them are the same,
under any Interpretation of the contract,
and that no act OF acts of the plaintiffs can
be held as waiver of its terms.
This court ag1e to all this. As to the
sale of the cargo of ice by the plaintiffs after
the defendants refusal TO accept 1t, the
court holds that under the cire reumstaLces
the plaintiffs bslow were entitled for their
own protection TO make the best of the ice
which they could by reasonable efforts, and
they are accou ntable only for the net pro-
ceeds. With the net proceeds they were
charged by the court below. The defend
ants below are holden to pay the freight
any event, and they cannot now complai4
in attempting to secure the net proceeds
that the plaintiffs below paid freight. The
plaintiffs below are charged with the net
amount they recovered from the barge for
damage to ice. The court holds that the
plaintiffs below had been properly credited
and debited with various sums with which
they should have been according to the
principles of law applicable to persons COM
PEELED to intervene to save property unjust.
ly thrown on their hands. The Judgment
of the Circuit court is affirmed.
Clarence Hale of Maine, for plaintiff in
error; G. Fl. Bartlett and G. f. Woodward
for the defendant il error.