Proctor v. Union Coal Co.

De Courcy, J. The plaintiff is engaged in the retail milk business and owns a farm on the shore of Whalom Lake, a great pond situated in Lunenburg. In 1897 he leased a portion thereof to one Stone for the purpose of cutting and storing ice, the lessee agreeing, as part of the consideration, to furnish Proctor with the ice he should require for the use of his family and in his milk business. Stone later assigned the lease to the defendant, the Union Coal Company, which carried on the business of selling ice. Later the plaintiff and defendant agreed to an extension of the lease for a term of ten years from December 6, 1907. Some modification apparently was made in its terms, but the instrument is not printed in the record. On March 31, 1913, the plaintiff sold to the defendant a lot of land, including that described in the lease. The consideration was $1,500 in cash, and an agreement about the ice which is the subject matter of this controversy. For about five years thereafter the plaintiff received the ice thereunder; but in 1918 the defendant leased to one Greene. In 1918 and 1919 the plaintiff hired a part of Greene’s ice house and stored some ice which was cut by the defendant’s employees. In January, 1920, the defendant sold the land to Greene, and conveyed it by a deed which made no reference to the plaintiff’s rights to ice; and since that time the plaintiff has obtained no ice under said agreement. This action was brought for breach of the contract, and the jury returned a verdict for the plaintiff. By said agreement the plaintiff was granted “the right and privilege of access across said land to the said company’s ice houses on the shore of Whalom Lake, and the privilege of taking therefrom such broken ice as the said Proctor may need for his own use in any manner or for any purpose of his own, it being understood that the privilege so granted does not allow the said Proctor to take ice for the purpose of selling or giving it away.” It further provided: “at such time or times as said Proctor may need ice for his own necessary purposes and when there may be no broken ice to be had, the said Proctor may have other ice. It is understood and agreed that all ice taken by the said Proctor hereunder shall be taken from the premises by him and that the said company will deliver no ice at any other point than at said ice houses. The — 432 — privilege herein granted shall extend to the said William R. Proctor, Jr., only and shall continue for and during the term of his natural life and shall not be assignable to any other person.” The main issue between the parties is that of the true interpretation of the contract, and the rights of the plaintiff thereunder. He needed substantially half a ton of ice a day in his milk business. He had obtained it as part of the rental of this land for about fifteen years, — the last five from the defendant as lessee. When he parted with his land in 1913, he expected to continue in the milk business, and undertook to provide for ice as theretofore. Presumably the defendant then expected to carry on the ice business indefinitely. It voluntarily and expressly bound itself to let the plaintiff take ice from its ice houses for and during the term of his life. Such a contract for life is enforceable. St. John v. St. John, 223 Mass. 137. Pierce v. Tennessee Coal, Iron & Railroad Co. 173 U. S. 1. It is the contention of the defendant that the rights of the plaintiff under the agreement were to terminate on the happening of any contingency causing either the non-existence of a sufficient supply of broken arid harvested ice at the defendant’s ice houses, or a change in the ownership of the realty in question.. A discussion of the first would be merely academic, as no such contingency arose or was contemplated. The defendant did not in express terms promise to cut and store any ice; but such cooperation was essential to carry out the agreement, and was implied therein. The construction that the defendant could terminate the plaintiff’s rights at any time by a sale of the premises, would leave the plaintiff wholly at the mercy of the company. It. is not to be presumed that the parties intended so unreasonable an agreement, in the absence of language expressing such intention. Carnig v. Carr, 167 Mass. 544. Gillet v. Bank of America, 160 N. Y. 549. Undoubtedly the defendant had a legal right to sell the land and ice houses. But if it exercised that right, and thereby deprived itself of the means of supplying ice in accordance with its. contract, to the plaintiff’s prejudice, it became responsible in damages. Whitmarsh v. Walker, 1 Met. 313. Rowe v. Peabody, 207 Mass. 226. John Soley & Sons, Inc. v. Jones, 208 Mass. 561. The trial court was right in ruling that “this contract required the defendant to furnish the plaintiff with ice for the rest of his. — 433 — life unless contingencies over which the defendant had no control and for which it could not be said to be at fault prevented.” On the issue of damages, the judge instructed the jury to allow a reasonable amount for the plaintiff’s expenditure for ice from the time when the breach of agreement took place to the time of trial. In awarding future damages he charged them to determine how long the plaintiff probably would live; the average annual cost of obtaining a supply of ice for the purposes defined in the agreement; and then to award him “such sum which invested reasonably, will yield an annual income during his life sufficient to furnish ice for his own use and for any other purpose except for sale or giving away, leaving no money at his death.” A tabulation showing the sum as computed, applicable for different ages, was submitted to them, and explained by the court. We find no error in this manner of determining the valué of the plaintiff’s right under the contract. Paro v. St. Martin, 180 Mass. 29. Freeman v. Fogg, 82 Maine, 408. What has been said disposes of the defendant’s requests for rulings, so far as material. The use of the evidence of what he expended in procuring ice after the defendant’s refusal to supply him, was properly limited in the charge. The objection that the price paid by the plaintiff to Harris and to Greene for ice in 1920-1921 included seller’s profits and cost of hauling, was not raised at the trial, where this minor detail could have been dealt with. As no error is shown in the conduct of the trial the entry must be Exceptions overruled.