Richmond Ice Co v. Crystal Ice Co

• Citation: 99 Va. 285,38 S.E. 141
• Parties: RICHMOND ICE CO. v. CRYSTAL ICE CO.
• Decision Date: 14 March 1901
• Court: Supreme Court of Virginia

38 S.E. 141

99 Va. 285

RICHMOND ICE CO.

v.CRYSTAL ICE CO.

Supreme Court of Appeals of Virginia.

March 14, 1901.

CONTRACTS—NONCOMPLIANCE—EXCUSE.

1. An ice company, undertaking to furnish ice to another company from day to day out of its surplus product, which was not to interfere with a previous contract to furnish ice to a third company, was not relieved of liability for failure to comply with such undertaking by the mere fact that it did not have a surplus on hand; but, knowing that the buyer was bound, subject to a penalty, to furnish the ice to others, it was its duty to exercise ordinary diligence in keeping a surplus on hand.

2. An ice company undertaking to furnish ice from day to day from its surplus product to another company, which was to pay for a certain amount whether taken or not, cannot recover for ice not taken, the failure to take being caused by the first company's neglect to keep a surplus and furnish the amount required from day to day.

Appeal from law and equity court of city of Richmond.

Action by the Richmond Ice Company against the Crystal Ice Company. Prom a judgment for defendant, plaintiff appeals. Reversed.

S. S. P. Patteson, for plaintiff in error.

Leake & Carter, for defendant in error.

BUCHANAN, J. Both the demand asserted by the plaintiff in his declaration and the set-off filed by the defendant arise out of alleged breaches of an agreement in writing between the parties, which is as follows:

"These articles of agreement entered into this 1st day of December, 1898, by anCrystal Ice Company, a corporation of the state of Virginia, party of he first part, and the Richmond Ice Company, a corporation of the state of Virginia, party of the second part.

"Witnesseth, that the said parties hereto have mutually agreed and covenanted, and hereby do mutually agree and covenant, with and to each other, in manner following to wit:

"First. That said party of the first part, for the considerations hereinafter mentiored, will from year to year, for the periord oftour years from date, —that Is to say, till

Nov. 30, 1902—furnish the said party of the second part, to be sold by it to the Mutual Ice Delivery Company, six thousand (6, 000) tons of ice per annum, on the following terms and conditions:

"Said ice to be delivered, at the platform of said party of the first part, to the wagons of the Mutual Ice Delivery Company for account of the party of the second part. The price to be paid said party of the first part is two dollars and thirty cents ($2.30) per ton of two thousand lbs. Payment is to be made to the party of the first part by the Mutual Ice Delivery Company on the 15th of each month for all ice furnished under this agreement during the previous calendar month in a manner similar to that adopted in settling with the Rosenegk Brewing Company for ice furnished by it for account of Mrs. Jane King; that Is to say, the Mutual Ice Delivery Company is to pay the party of the first part, on the 15th of each month, two dollars and thirty cents ($2.30) per ton for all ice furnished it during the previous month on account of the party of the second part, and is to pay the party of the second part the difference between the price of two dollars and thirty cents ($2.30) per ton and the price at which the party of the second part has agreed to furnish to the Mutual Ice Delivery Company.

"Second. Said Ice is to be furnished by the party of the first part from day to day out of its surplus product, and the furnishing of said ice is not to interfere with furnishing its own quota to the Mutual Ice Delivery Company.

"Third. The party of the second part hereby agrees to take from the party of the first part during the time specified six thousand (6, 000) tons of ice per annum, at two dollars and thirty cents ($2.30) per ton, and, in consideration of the price at which said ice is to be furnished, the party of the second part furthermore agrees to pay the party of the first part at the rate of two dollars and thirty cents ($2.30) per ton for six thousand (6, 000) tons of ice per annum during the term of four years from date, whether the party of the second part takes six thousand (6, 000) tons per annum or not; payment for the excess, if any, over what is actually furnished the Mutual Ice Delivery Company for account of the party of the second part, to be made by the party of the second part to the party of the first part on January 15th of each year during the term specified, viz. the period of four years from date hereof."

At the time the agreement was entered Into the Mutual Ice Delivery Company, mentioned therein, was engaged in selling and delivering ice to consumers, and had a contract with the plaintiff, the defendant, and two other companies or firms to furnish the ice which It needed to supply its customers. By that contract the plaintiff was bound to furnish 32 per cent., the defendant 38 per cent, and each of the other two companies 15 per cent, of the Ice required by the Mutual Ice Delivery Company for its purposes.

The plaintiff neither manufactured nor put up ice. Being under the necessity, therefore, of purchasing ice to keep and perform its contract with the Mutual Ice Delivery Company, it entered into the...