Oakland Ice Co. v. Maxcy

74 Me. 294, 1883 Me. LEXIS 8

• Court: Supreme Judicial Court of Maine
• Decided: January 23, 1883
• Status: Published

Opinion

Yiegin, J.

Assumpsit for an alleged breach of a contract whereby the defendants were to purchase of the plaintiff company five hundred tons of ice, at five dollars per ton, to be shipped from the Oakland-ice houses, in Pittston, "in the month of August, 1880, when the Oakland company are shipping ice.”

The report discloses that one Rich was the president and business manager of the plaintiff company and owned ice houses at Farmingdale, some five or six miles above the plaintiffs’, on the Kennebec river. The Oakland houses were not ojien in the month of August, 1880; and the plaintiffs contended that the reason was on account of a waiver, on the part of the defendants, as to the time and place of the delivery of the ice. That not wishing to open the Oakland houses simply to take out a single cargo, the plaintiffs, about August 25, proposed to Maxcy that if they wanted the ice during the month of-August, it would be shipped- at Rich’s houses, in Farmingdale, where he was then shipping; or, if they insisted on having it from the Oakland houses, it should be shipped at them. That to the former alternative, Maxcy, one of the defendants and representing them, assented, with an understanding between the parties, that, as the defendants had thereby accommodated the plaintiffs as to the place, the latter should reciprocate as to the time of delivery, and hold the ice until it should be wanted. That all the ice was thereafter disposed of in the Oakland houses and five hundred tons held for the defendants in the Farmingdale.

The case is before us on motion and exceptions.

I. Rich’s testimony as to a conversation relating to the change of the place of delivery, had with Maxcy after the execution and delivery of the written contract, but before they separated, was clearly admissible. Goss v. Lord Nugent, 5 Barn. and Adol. 58; Marshall v. Baker, 19 Maine, 402; Adams v. McFarlane, 65 Maine, 143, 152, and cases cited there.

II. So was his testimony as to the message sent by him through Davenport to "Maxcy. If he could deliver the message himself directly to Maxcy, he could send it by an agent duly authorized. To bo sure, the message must be shown to have been communicated to the other party. But the order in which these facts shall be marshaled is subject to the discretion of the court.

III. So was his testimony as to a conversation he had with Maxcy, while the contract ivas being written, relating to the time of delivery to be inserted in the contract. If the defendant had desired to keep that conversation out, he should not have drawn out a portion of it in cross-examination, and thereby withdraw objections to the remainder of it. Williams v. Gilman, 71 Maine, 21.

TV. We can conceive no legal objection to the admissibility of Rich’s testimony as to the length of time required to open the Oakland houses in August; and the defendants suggest none. Moreover the next succeeding testimony of the same witness covers the same facts, and it was not objected to.

V and VII. The instruction relating to waiver, is not questioned as to its legal quality; and it cannot be properly. Adams v. McFarlane, supra. But it is challenged upon the alleged ground that there was no testimony calling for it. If we looked only at the testimony introduced by the defendants we might conclude that the objection was well taken; but the plaintiffs’ whole case is founded upon an alleged waiver as to the stipulated place of delivery; and there is an abundance of testimony from Rich and Davenport, coupled with the non-denials and non-action of the defendants to call for the instruction. Otherwise this testimony would have been kept from the jury.

VI. Nor is the instruction relating to the duty of the defendants to notify the plaintiffs when they were ready to receive the ice, questioned as a matter of law; but it is contended that it should not have been given in this case, for the reason that one of the defendants’ witnesses, testified that the plaintiffs said they should not open the Oakland houses in August. If that were an undisputed fact, perhaps the law would not have required the useless ceremony on the part of the defendants. But that statement was stoutly denied by the plaintiffs, and the presiding justice could not pass upon that question of fact.

VIII. The eighth exception seems to have been abandoned.'

IX. The instruction at the close of the charge given at the request of the plaintiffs, furnishes no ground for exception on the part of the defendants.

X. The first requested instruction was rightfully refused. Appropriate instructions were given in connection with the custom as proved.

XI. The second request was fully covered by the charge.

XII. The third request was properly refused. Rich had the entire charge of the plaintiffs’ business and Maxcy testifies that he knew it; and that when he (Maxcy) spoke to Davenport and asked him "when they were going to open the Oakland houses,” and that the defendants "were ready to take it (ice) anytime they opened in August.” Davenport answered that "he did not know that Mr. Rich had charge of it.” Maxcy also testified that he never made any such inquiry of Rich. The judge had fully explained all the necessary steps to be taken by the parties under the various phases of the testimony, and upon a careful reading of the entire charge of the learned judge, we fail to perceive howeither party could be aggrieved by anything therein.

Motion. The testimony was very conflicting, coming almost entirely from interested parties or persons. The ice market began to fall in the fore part of August, and perhaps the jury could perceive the influence of that fact upon the testimony of the defendants. At any rate the verdict is founded upon sufficient testimony if true.

Motion and exceptions overruled.

AppletoN, C. J., Walton, Barrows, Daneorth and Peters JJ., concurred.