Citations
- 46 A.D. 491
Full opinion text
Smith, J.:
The defendant company was one formed for the purchase, sale and delivery of ice in the city of Buffalo. It was formed' by the representatives, of five different .ice- companies, one of which was the Buffalo Ice Company. The stock was all owned by these five companies, each of which had. a representative in its board of directors. The representative of the Buffalo Ice. Company was Harry Yates, the president of,that company. The preliminary, agreement made between the representatives of the five, companies, before the organization, provided for the amount of. stock that should he held by each company, and further provided that the defendant company should purchase ice from each company- in proportion to. the amount of the stock held.- The Buffalo Ice Company held fifty per cent of the stock, and sold to tlie defendant fifty per cent of its ice. After the formation of the company, the defendant made similar contracts with each company for the purchase.of the ice.
One of these contracts ivas made with the Buffalo Ice Company as party of the first part and the defendant as party of the second part, which provided that the first party was to sell to the second party fifty .per cent of all ice used by the second party for a period of ten years from April 1, 1896, at the rate of seventy-five cents per ton from January first to May first, and one dollar and fifty cents from May first to January first in each year. There is no controversy as to the amount of ice sold under this contract; and if the contract prices are the measure of the defendant’s liability, the judgment is right.
The answer of the defendant alleges that, at the time these several contracts were made between the Citizens’ Ice Company and the different contributing companies for the purchase of ice, the price was discussed ; that it was there agreed that the price to be paid was to be regulated by the amount of the net profits, and was to be raised or lowered to correspond ; and that upon that basis the defendant company had fully paid for all the ice which it had purchased of the Buffalo Ice Company. The defendant asks to have the contract so reformed as to express such agreement. Claiming to have overpaid to the amount of about $450, it counterclaims for that sum. The referee has found that the contract expresses the agreement made; that there was no mistake of fact or law under which it was made, and that the defendant is not entitled to relief.
This finding by the referee is the only one warranted by the evidence. The contract was made understanding!}7, under no mistake, cither of law or fact. It was stated, and orally agreed, before the written contract was entered into, that if the net profits of the - defendant company did not warrant the prices named, new prices would be made which the net profits could pay. But those new prices were to be made by the parties, and, until made, the contract prices were to govern. Such, we think, is the clear import of the evidence. It is in. harmony, too> with thé purposes of the defendant’s incorporation. The five contributing companies, which were to furnish to the defendant substantially all the ice to be used, were the-solei owners.