Winchell v. Scott

• Decision Date: 28 June 1889
• Parties: WINCHELL v. SCOTT et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 640

21 N.E. 1065

WINCHELL

v.SCOTT et al.¹

Court of Appeals of New York,

Second Division.

June 28, 1889.

Appeal from common pleas of New York city and county, general term.

B. Doran Killian, for appellant.

William G. Cooke, for respondents.

POTTER, J.

This is an appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming the judgment of that court rendered upon the report of a referee dismissing the complaint with costs. The action was brought to recover damages for an alleged breach of a contract between plaintiff and defendants, made March 5, 1868, for the delivery of ice by defendants to plaintiff for five years. The damages are alleged to have arisen in consequence of the plaintiff having been compelled to pay a price for ice for the last four years of the period of five years considerably above the price provided in the contract. The contractual period expired April, 1873. The action was commenced in 1875, and the damages are alleged to have amounted to the sum of $36,000. The defense was that the contract provided that in case the plaintiff failed to perform his obligations under the contract, to pay weekly for the ice delivered, the defendants had an option to declare the contract thereafter void; that the plaintiff failed to pay for the ice delivered from October, 1868, to January, 1869; that payment therefor was duly demanded on the 10th day of March, 1869; that plaintiff made default in payment, and that the defendants on the 10th of March, 1869, gave the plaintiff a written notice that they elected to assert their option to declare the agreement null and void. The action was referred, by consent, to a referee, who reported that the plaintiff was owing the defendants on January 1, 1869, the sum of $176.75, for ice delivered subsequent to the 17th day of the preceding October, and that the defendants exercised their option on the 10th of March, 1869, to annul the contract, and that they had the right to do so by reason of the plaintiff's default in payment of the ice received by him. The accounts, dealings, payments, demand of payment, and failure to comply with such demands, etc., were very fully investigated upon the trial before the referee. The plaintiff is seeking to enforce the contract, and must therefore show that it was valid and obligatory upon the defendants at the time that he alleges the defendants broke it. The referee has found that the plaintiff had not paid for the ice delivered to him by defendants between October 17, 1868, and January 1, 1869, and that payment was demanded of the plaintiff on the 10th day of March, 1869, and that he failed to comply with the demand, and did not in fact pay the balance he owned defendants until the month of June, 1871. The contract provided that the plaintiff should pay for the ice received by him weekly, and further, that if he fails to perform his obligations, then, at the option of the defendants, the agreement should be null and void; and the referee finds as facts...