126 N.Y.S. 996 | N.Y. App. Div. | 1911
The plaintiff is a canal boatman, and in December, 1908, was using his boat for carrying coal at Astoria, N. Y. On the nineteenth of that month he telegraphed the defendant, who was engaged in the ice business at Rondout, asking for the best price of a load of ice to New York city. The defendant answered by telegram on the twenty-first, saying that for a good boat with hatches he would pay $100 for a load delivered in New York, requesting an answer. The plaintiff claims that he answered by postal, which the defendant says he never received, saying that he had a good boat, that he accepted the offer and would bring his boat up as soon as he could. On the thirty-first lie sent another postal, saying that he was leaving for Rondout that night and requesting defendant to provide'a place for ' the boat on arrival. This postal the defendant did receive and did provide a place for the mooring of the plaintiff’s boat in Rondout creek. Shortly thereafter the defendant fitted up the plaintiff’s boat with runs for the loading of ice when it should form in the creek. The defendant claims that merchantable ice did not form that winter and hence that plaintiff’s boat was not loaded. About the first of March hope of merchantable ice forming was abandoned and the plaintiff demanded his pay, which the defendant refused. Whereupon this action was brought in the City Court of Kingston for the stipulated $100-as'damages, .and resulted in a judgment for the defendant. The plaintiff took an appeal to the County Court of Ulster county demanding a new trial, which resulted in a direction of verdict by the court for plaintiff, and from such judgment the defendant appeals to this court.
The defendant’s contention on the trial was that there was a custom amongst boatmen and ice dealers in that- locality7, known to the plaintiff, to the effect that boats engaged for the transporting of ice should-not be paid for unless ice should form of sufficient thickness to be marketable.
The.learned trial court ruled that the contract was specific and that proof of custom was immaterial.
We are of opinion this was error. Assuming that the telegrams- and writings which passed between the parties constituted a binding written contract, still the terms - are not so specific that it can be said as matter of law that it was not ma.de with reference to a well-
All concurred.
judgment and order reversed and new trial granted, with costs to appellant to abide event.