Woodbridge Ice Co. v. Semon Ice Cream Corp.

• Court: Connecticut Supreme Court
• Writing for the Court: THAYER, J.
• Citation: Woodbridge Ice Co. v. Semon Ice Cream Corp., 81 Conn. 479, 71 A. 577 (Conn. 1909)
• Decision Date: 06 January 1909
• Parties: WOODBRIDGE ICE CO. v. SEMON ICE CREAM CORPORATION.

71 A. 577

81 Conn. 479

WOODBRIDGE ICE CO.

v. SEMON ICE CREAM CORPORATION.

Supreme Court of Errors of Connecticut.

Jan. 6, 1909.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by the Woodbridge Ice Company against the Semon Ice Cream Corporation. From a judgment for defendant on its counterclaim, plaintiff appeals. Reversed, and new trial ordered.

E. P. Arvine, Albert D. Penney, David E. Fitzgerald, and Walter J. Walsh, for appellant.

Richard H. Tyner, for appellee.

THAYER, J. This is an action upon the common counts with a bill of particulars showing 464 tons and 1,900 pounds of ice sold and delivered by the plaintiff to the defendant during the months of August, September, and October, 1906; the deliveries during August being charged at $5 per ton, and those for September and October at $6 per ton, and the total charge being $2,526.70. The answer, after alleging that the plaintiff is an ice dealer and the defendant a wholesale and retail dealer in ice cream in New Haven, and that the action is brought to recover a balance of $2,520.70 claimed to be due contains, the following allegations: "(4) On or about February 1, 1906, the defendant, who for some time prior thereto has been a customer of the plaintiff, and the plaintiff entered into an oral agreement, whereby the plaintiff was to furnish ice to the defendant to be used by it in said ice cream business during the year 1906. (5) The plaintiff did furnish ice to the defendant under said agreement from February 1, 1906, to October 26, 1906, and the total amount of ice furnished during said period was 1,351.88 tons. (6) It was agreed between the defendaut and the plaintiff that all ice furnished should be delivered at the defendant's factory at $2 per ton net, and that all of said ice should be clean and solid, made up of large blocks, and first class in every particular and in every way satisfactory to the defendant. (7) The ice mentioned in the bill of particulars was part of the ice furnished the defendant under said agreement." The answer then alleges that the ice furnished was full of dirt and refuse and was not satisfactory to the defendant, that it could not be handled and used by him except at a much larger expense than if it had been ordinary marketable ice, that it was not worth more than $1 per ton, and that, if it had been clean, solid, and satisfactory ice, it would have been worth $2,700. It then alleges that the defendant paid the plaintiff after February 1, 1906, on account of said ice, various sums amounting in all to $3,386.25, that this was "all and more than all said ice was reasonably worth," and that there was no other agreement, express or implied, under which the ice mentioned in the bill of particulars was furnished, except the one set up in the answer. The answer contains the following by way of counterclaim; paragraphs 11 to 19, inclusive, having been stricken from the answer before the counterclaim was filed: "(1) All the foregoing paragraphs of this answer, except paragraphs 11 to 19, inclusive, are hereby made part of this counterclaim. (2) Said ice was worth at least $4,503.55 less than the plaintiff claims on account of its deficient character. The defendant claims to recoup said sum of $4,503.55 for such deficiency, to the extent of the balance claimed by the plaintiff, and asks judgment against the plaintiff for the excess." The reply admits that $2,526.70 is claimed to be due, that the occupations of the parties are as stated, and denies all the other allegations of the answer and counterclaim.

Upon the trial it was proven, and not denied by either party, that from January to March, 1906, the plaintiff had been selling ice to the defendant at $2 per ton, that on March 30th, the plaintiff notified the defendant by letter that until further notice the price of ice delivered to it would be at $4 per ton, that on August 7th by another letter it was notified that until further notice the price would be $5, and that on August 31st by another similar letter notice was given it that after September 1st the price would be $6. It was also undisputed that monthly bills were rendered for ice sold each month at the different prices, that these had all been paid to August 1, 1906, and that these payments amounted to the sum of $3,386.25 as stated in the defendant's answer. The defendant claimed that these payments were made under protest; the plaintiff that they were made freely and voluntarily. The chief contested question between the parties, apart from the quality of the ice, was whether there was a contract between the parties such as was set up in the answer. The defendant claimed to have established such a contract; the plaintiff claimed that the evidence failed to establish it, and that, if such a contract was made, it was abrogated later.

The court charged the jury that the sending of the letters giving notice of an increase of price, and the acceptance of ice thereafter by the defendant and payment of the price demanded, would not of themselves amount to a waiver or abrogation of the contract claimed by the defendant, if made; but that such facts would be evidence for the jury to consider in determining whether there was such a waiver or abrogation of the contract. The plaintiff claims that there was error in this part of the charge. If there was a contract between the parties made in February as claimed by the defendant, the plaintiff alone could not abrogate it. It required the same meeting of minds to abrogate it which was required to create it The plaintiff could not, by writing a letter to the defendant, stating that ice thereafter delivered would be charged at a different price, annul the contract or change its terms. The defendant, in accepting the ice after such notice, and in paying the increased price, may have done so, as he claimed was the fact, under protest, and claiming his rights under the contract and that an adjustment in accordance with it should afterwards be made. The two parties might rescind or change the terms of the contract, and, as the jury were told, the acceptance of the ice after the notices and the payment of a double price for it was evidence, and very strong evidence, of the abrogation or waiver of the contract if it ever had existence; but these circumstances did not as matter of law amount to an abrogation or waiver of it, and it was therefore properly left for the jury to draw their inferences from the facts and say whether...