Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1896-05-11
9aily gennehet Suaruat.
City and County.
EXCEPTIONS SUSTAINED
In the important Case MiIIikcn Ct al vs.
Randall.

The following rescript in the important
kennebec County case of Chas A.
Milliken ct al. VS.. Ira II. Randall, has
been received by Clerk of Courts Choate:
Rescript. Wiswell. Jon April 2, 1890.
the parties to this. suit entered into a
agreed to sell and deliver to the defen-
dant. and the defendent agreed to pur-
chase and receive, all of the ice in a cer-
tain 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 damaged for Il
voyage to New York.
One of the provisions of the contract
was as follows: Said ice and house in
which it is stored shall be under the care
of the party of the first part Uhe plain
tllts) until said ice is all shipped, with
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 of the second part Subsequently
the contract was modified by the parties
to the extent that the defendant should
himself transfer the ice from the house
TO the vessel and be allowed therefor the
actual costs of the same The defendant
commenced taking and shipping ice in
me 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
count and the costs of taking the ice
from the house to the vessel. The plain
tins declaration contains two counts in
one or which the contract is declared
upon, the other is the common count up
on the account annexed for ice sold and
4ellvered II was contended by the de-
iehdaht ana set up in his brief statement
under the general issue, that by reason OF
me plaintiffs failure to take such care of
me ice and the house in which it was
stored up TO July list. as the contract
n losl py hauling and melting. This was
one OF the. principal issues in the trial
inuch evidence being introduced upon
both sides as to the manner in which the
ice and house We're cared for between
the date of the contract and the first
day Es Of July following.
Ihe 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-
lendant Held; that this instruction was
That the obligations assumed by the
pialntl1s in the written contract were
ilot only to sell and deliver the specific
ice therein referred to. but also to exer-
else reasonable diligence in taking care
or the house and its contents until July
ist:, and that the agreement of the de-
named in the contract for the ice. huf
mat this sum included compensation for
'ue care Of the Ice during The period named
~ nat the burden was upon the plain
preponderance of the whole evidence
that they had performed this substantive
portion of their contract.
Ihat the allegation in the defendants
prlef statement. that the plaintiffs care
OF the ice was of such negligent. care
less and unskilful character that a large
quantity OF the ice wasted and melted
away was unnecessary. and thar Inc
defence could have been made under the
general issue The defendants plea ana
pflei statement set up no new matter in
confession and avoidance, but was simply
an allegation that the plaintiffs had nor
performed an important obligation which
the contract imposed upon them, il was
contained in the plaintiffs writ.
Exceptions sustained.
Rec Il. May Sth, 1896