The Portland daily press., 1896-05-08
SUPREME JUDICIAL COURT
The following rescripts and deoision
were received yesterday:
KENNEBEC COUNTY.

The following rescripts and decisions
were received yesterday:
KENNEBEC COUNTY.
Charles A. Milliksn ct al, Vs. Ira II.
Randall.
Rescript-W iswell, Jon April 2,
1890, the parties to this suit entered into
u written contract wherein the plaintiffs
agreed to sell and deliver TO the defend
ant, and the defendant agreed to pur-
chase and receive, all of the ice in a cor
tain ice house, the quantity of which
was agreed by the parties to be three
thousand and thirty-six tons. The ice
was to be delivered by the plaintiffs, and
at their expense, on board vessels to be
furnished by the defendant at Hallowell,
where the ice was stored, properly dun
mayed for voyage to New York.
One of the provisions Of the contract
was as follows: ''Said ice and house in
which 1t is stored shall be under the care
of the party of the first part, (the plain
tiffs) until said ice is all shipped without
charge or expense to the party of the
second part, OF until July lst 1890, after
which date the expense Of the care of said
ice and rental of the wharf where it is
stored shall be at the expense of the party
contract was modified by the parties to
the extent that the defendant should HIM
self transfer the ice from the house to the
vessel md be allowed therefor the actual
costs of the same. The defendant COM
menced taking and shipping ice in the
latter part of June and completed the
shipments about the 10Th of july 1890. =
In this action the plaintiffs seek to re-
cover the contract price for the ice, less
the amount Of payments made upon &C.
count and the costs of taking the ice
from the house to the vessel. The plain
| tiff's declaration contains two counts, in
one of which the contract is declared up
on, the other is the common count upon
the account annexed for ice sold and de-
| livered. 1t was contended by the defend
| ant and set up in his brief statement I'M
der the general issue, that by reason of
| the plaintiffs failure to take such care of
| the ice and the house in which it was
| stored UP to July 1st, as the contract
| called for, large quantity of the ice was
lost by hauling and melting. This was
one of the principal issues in the trial
| much evidence being introduced upon
both sides as to the manner in which the
| Ice and house were cared for between the
date of the contract and the first dav of
July following.
The presiding justice Instructed the
jury that the burden of proving that the
plaintiffs had not taken reasonable and
proper care of the ice was upon the de-
PENDANT. Held; that this instruction was
erroneous.
I hat the obligations assumed by the
plaintiffs in the written contract were
not only to sell and deliver the specific
Ice therein referred to, but also to exer-
cise reasonable diligence in taking care
of the house and its contents until july
1st., and that the agreement of the de-
fsndant was not simply to pay the sum
named In the contract for the ice, bnt
that this sum included compensation for
the care of the ice during the period
named.
That the burden De- was upon the plain
prepondsrance of the whole evidence tha +