People's Ice & Fuel Co. v. Field Pure Ice Co.

161 Mich. 311 | Mich. | 1910

Brooke, J.

(after stating the facts). The sole question at issue in this case is the proper construction of the contract.

After a careful examination of the contract itself, and due consideration of the situation of the parties thereto, we find ourselves unable to agree with the conclusion reached by the learned circuit judge. The contract, taken as a whole, indicates that both parties were engaged in the ice business in the city of Kalamazoo; that the plaintiff was about to retire from that business, and the defendant was about to take over the same. To that end the plaintiff agreed, first, to sell all its ice, both in its house in the city and in its house at Austin Lake (approximately fifteen hundred tons) to defendant; second, to sell to the defendant its list of customers; third, to refer all inquiries for ice to defendant; fourth, to permit defendant to use free of charge while purchasing this ice (obviously referring to the fifteen hundred tons) wagons, ice tongs, and scales. Defendant then agrees:

‘ ‘ Party of the second part agrees to purchase of the party of the first part all of the natural ice purchased by it prior to August 1st, 1909, and pay for the same three dollars ($3.00) per ton, payable upon delivery.”

It is then mutually agreed that plaintiff shall not be liable for the destruction of the ice by fire. If the defendant’s construction of this contract is correct, then it had made an agreement with plaintiff whereby plaintiff was bound to keep all its ice in storage until August 1st, subject to great shrinkage, and to turn over to defendant its list of ice customers and all inquiries for ice, and, in return therefor, it would receive nothing, for defendant contends it was bound to take no ice at all under the clause quoted, but only agreed to take such natural ice as it might care to purchase before August 1st from plaintiff.

This construction we think clearly untenable. We believe that a fair reading of the entire contract indicates an intention on the part of the plaintiff to sell, and on the part of the defendant to buy, all of the ice in question, and that the clause of the contract above quoted means that the transaction shall be completed before August 1, 1909. This limitation was inserted for the obvious reason that the subject-matter of the contract was liable to constant shrinkage through melting. A construction of this particular clause of the contract, which would'do violence to the intention of the parties as disclosed by the whole instrument, is not permissible. Baker v. Baird, 79 Mich. 255 (44 N. W. 604); Beadle v. Improvement Co., 140 Mich. 199 (103 N. W. 554).

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, Blair, and Stone, JJ., concurred.