APPEAL by the defendant, Central Fish Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York
on the 9th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 6th day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.
Frank Harvey Field, for the appellant.
Edward W. S. Johnston, for the respondent.
This is an action to recover damages for a breach of a contract in writing made between the plaintiff, as party of the second part, and the defendant, as party of the first part, on the 1st day of August, 1907. The parties differ with respect to the construction of the contract, and upon the decision of this question of difference between them the plaintiff's right of action depends. The plaintiff claims that the defendant obligated itself by the contract to furnish and deliver to plaintiff in the city of New York at least one carload of live fish per week during the period covered by the contract; and the defendant contends that it was not obligated to bring into the city of New York or to deliver to the plaintiff any live fish in any week, provided it gave plaintiff three days' notice that it would not do so. The contract consists of seven paragraphs. By the 1st paragraph defendant agreed to sell and deliver to the plaintiff 'promptly on arrival at Fulton Market, Manhattan Borough, City of New York, all live carp to be brought by the party of the first part into the City of New York for a period of one year from the date hereof; ' and not to sell or deliver any live fish so brought into the city of New York to any other individual or corporation, nor to permit or allow the use of its boats or cars in the transportation of live fish by any other individual or corporation during the period of one year, that being the time the contract was to run, except as stated in paragraph 6, which provided that defendant should be at liberty, in the event therein specified, to sell a certain amount of live carp to certain individuals therein named. The 2d and 3d paragraphs are as follows:
'II. The party of the second part hereby agrees to purchase from the party of the first part all such live carp as herein
stated, and to pay therefor twelve and one-half (121/2) cents for each pound, for all fish delivered during the months of August, October, November, April, May, June and July, and fifteen (15c) cents for each pound for all such fish delivered during the months of September, December, January, February and March, and to make payment on each Monday or Saturday fully for all such fish taken prior to such Monday or Saturday.
'III. The party of the first part agrees to bring into the City of New York and deliver to the party of the second part each week not more than one carload of live fish unless requested to bring in more by the party of the second part; each carload shall not contain more than from 6,000 to 6,500 lbs. during the six summer months, namely: April, May, June, July, August and October, and not more than 8,000 to 8,500 lbs. during the other six months, said fish to be alive and in good condition, and every carp shall not exceed three pounds in weight, except one thousand (1,000) lbs. thereof in each carload; said fish to be brought and delivered on the days designated by the party of the second part, providing the party of the first part shall receive sufficient notice in case of a change in the days for delivery desired by the party of the second part, and in case the fish shall arrive later than the day designated by the party of the second part, then the party of the second part shall not be obligated to accept the same, provided always that the party of the first part shall have had sufficient notice as aforesaid.'
The 4th paragraph gave plaintiff the right once in each month to request the defendant 'not to bring in more than one-half carload of live carp containing not more than 4,000 lbs. during one week, and in such event, upon notice to the party of the first part, the party of the second part shall not be obliged to take more than one-half carload as stated.'
The 5th paragraph is as follows:
'V. In case no shipment of live carp should be made in any week, three days' notice shall be given to the party of the second part that it may ...