Baker Transfer Co. v. Merchants Refrigerating & Ice Manufacturing Co.

Williams, J.: . The question raised by this appeal is, whether under the facts alleged in the complaint a covenant should be implied on the part of the defendant to furnish the ice for delivery to customers. There is no uncertainty in the agreement as to the quantity of ice; it was 75 to 100 tons daily, at least 75 tons. The general rules of law relating to implied covenants are well settled and have been frequently stated by the courts. (Booth v. Cleveland Mill Co., 74 N. Y. 21; Jugla v. Troutett, 120 id. 27; Genet v. D. & H. C. Co., 136 id. 608, 609 ; Jacquin v. Boutard 89 Hun, 437, and eases therein referred to.) In Booth v. Cleveland Mill Co. (supra) it was said by Allen, J.: “ There is no particular formula of words or technical phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing or perform a specified act. If from he text of an agreement and the language of the parties, either in the body of the instrument or in the recital or references, there is manifested a clear'intention that the parties shall do certain acts, courts will infer a covenant in the case of a sealed instrument, or a promise if the instrument is unsealed, for non-performance of which an action of covenant or assumpsit will lie.” [510] In Jugla v. Troutett (supra) Bradley, J., said: “‘When any act ■of the parties or either of them is essential to cany out the intention of the parties appearing by the provisions of a contract, the stipulation for the performance of such act will be deemed within its provisions-as effectually as if actually expressed.” And in Genet v. D. & H. C. Co. (supra) Finch, J., said: “ I know very well that implied promises are to be cautiously and not hastily raised. * * * They always exist where equity and justice require the party to do or to refrain from doing the thing in question. Where the covenant on one side involves some corresponding obligation on the other; where, by the relations of the parties and the subject-matter of the contract, a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of it. In this court we have thrown some safeguards about the doctrine to secure its prudent application, and have said that a promise can be implied only where we may rightfully assume that it would have been made if attention had been drawn to it, and that it is to be raised only to enforce a manifest ^equity or to reach a result which the unequivocal acts of the parties indicate that they intended to effect.” In Jacquin v. Boutard (supra), which was an action brought to recover damages for the breach' of a contract whereby the defendants employed the plaintiff in their business, among other things, to sell goods as their agent, the General Term of the Supreme Court in this department held that, although there was no express promise in the ■contract that the defendants should furnish the plaintiff with samples and price lists of their goods, yet such promise should be implied from the facts and circumstances surrounding the execution of the contract and the conduct of the parties thereunder, citing Booth v. Cleveland Mill Co. and Genet v. D. & H. C. Co. (supra) and other cases. Parker, J., said “that the failure of the promise sought to be implied to appear in the contract was not an intentional omission, but a mere inadvertence. * * * While the courts hesitate to imply promises in formal contracts, it will be done where otherwise the manifest intention of the parties would be defeated.” These are some of the latest expressions of the courts upon this subject and may well be relied upon as correctly stating the principles to be applied in this case; and, in view of these principles, [511] we think that the trial court was clearly in error in holding that no covenant on the part of the defendant to furnish the ice to the plaintiff could be implied. The agreement, in form, was mutual, and signed and sealed by both parties. It stated that the defendant was engaged in the manufacture of ice, and would have an output of from 75 to 100 tons per day, and that • the intention was to dispose of this ice and deliver the same to various customers. It further provided that the plaintiff should take the ice from the defendant’s plant and deliver it to the customers; that the plaintiff should incur great expense in providing horses, wagons, harnesses, etc., in preparation for the special work of taking and delivering the ice ; and that if plaintiff failed promptly to take and deliver the ice as agreed, the defendant might itself arrange to have it delivered and that plaintiff should be liable for any excess in the expense thus incurred, over and above the prices agreed to be paid plaintiff under the agreement; that the price to be paid plaintiff for such delivery should be fifty and seventy-five cents per ton, and that the term of the agreement should be two years, with the option to the defendant after one year to purchase the horses, wagons, etc., from the plaintiff, and thus by implication terminate the agreement. The intention of the parties is very apparent from the language of the agreement itself. The defendant was to manufacture 75 to 100 tons of ice per day, and plaintiff was to take and deliver all of it to customers. There is no suggestion in the agreement, express or implied, that the plaintiff should take or deliver less than the whole amount of ice manufactured. How •could such an intention be carried out unless the defendant furnished the ice to plaintiff so to deliver. The furnishing of the ice by the defendant was essential to carry out this intention, and, therefore, the court should imply a covenant to perform this act. The covenant on the part of the plaintiff involved a corresponding obligation on the part of the defendant to furnish the ice. In view of the relations of the parties and the subject-matter of the contract, a clear duty was owing on the part of the defendant to deliver the ice. This was understood and assumed. Upon no other hypothesis is it conceivable that the plaintiff would have covenanted as he did. The covenant must be implied to reach a result which the [512] unequivocal acts of the --parties indicate that they intended to effect. Sufficient reasons thus appear why the covenant contended for should be implied in this agreement, and it does not seem to be necessary further to consider the facts or discuss the law of the case. Our conclusion is that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. ' Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred. Judgment reversed and new trial ordered, with costs to appellant to abide event.