Majority
p. 144(78 Hun, 96.) FRESTON v. LAWRENCE CEMENT CO. (Supreme Court, General Term, Third Department. May 26, 1894.) Argued before MAYHAM, P. J., and PUTNAM and HEBEICK, JJ.
Headnote
•Contract to Quarry and Deliver Cement—Interpretation.F. agreed with a cement company to quarry, burn, and deliver, in a storehouse at a certain place, cement,—the stone to be taken from the company’s quarry, and in a manner so as not to endanger it,—and the company agreed to pay F. a certain price per barrel for all cement delivered in such storehouse, set times stated. Hold, that F. was required to furnish the wood and coal to burn such cement, etc.
Appeal from circuit court, Ulster county.
Action by John Freston against the Lawrence Cement Company for breach of contract. The complaint was dismissed, and plaintiff appeals. Affirmed.
The material part of the contract sued on is as follows:
“This contract, made and entered into at Eddyville, N. Y., this 5th day of February, 1890, between the Lawrence Cement Company, party of the first part, and John Freston, Jr., party of the second part, witnesseth: That in consideration of one dollar in hand paid, the receipt of Which is hereby acknowledged, and a further consideration as hereinafter stated, the party of the second part agrees with the party of the first part, for the season of 1890, to quarry, burn, and deliver in storehouse alongside of canal at Rosendale, N. Y., cement of good quality, and said stone to be quarried from our quarry at Rosendale, recently operated by E. T. Smith. The party of the second part is to quarry the stone so as not to endanger the quarry. The party of the second part does hereby agree with the party of the first part to well and faithfully perform said work, in a thorough and workmanlike manner, to the satisfaction of the said party of the first part, its superintendents or agents; and, upon the faithful performance of said work, the said party of the first part agrees to pay unto the said party of the second part the sum of twenty-nine cents (29) per barrel for all cement of good quality delivered in said storehouse at Rosendale, N. Y. Payments shall be made on or about the fifteenth (15th) day of each and every month that this contract is in force, covering the account of the previous month.”
William Lounsbery, for appellant.
Bernard & Van Wagonen, for respondent.
There is no disputed, question of fact in this case. The whole case turns upon the construction to be given to the contract under which the cement was furnished by the plaintiff. The trial judge held that, as the plaintiff undertook to quarry, burn,
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and deliver the cement at the dock, he was by the terms of the contract required to do, at his own expense, all that was necessary to accomplish that purpose, and that, as it required wood and coal to prepare the cement, he was required, at his own expense, to furnish the same. His monthly deliveries of cement were therefore-properly charged in the receipts with the coal received of the defendant, and the considerations for the receipt were not open to examination. We think his interpretation of the contract was correct, and that he committed no error on the trial for which the judgment should be reversed. Ho opinion seems to be required. The judgment must be affirmed, with costs. All concur.