Opinion bv
William W. Porter, J.,The plainitff and defendant companies on February 17,1901, entered into a written contract whereby the former agreed “ to sell to the said party of the second part, all now unsold, being about 12,000 tons of ice.” This ice was to be taken and delivered on or before December 10th, from the plaintiff’s storehouse. When the contract was made, the ice was stored in a mass of many tons. A sale or sales of some of the mass had previously been made. This was known by the defendants, al*149though there was controversy as to the number of precedent sales. -
From time to time, but not with great promptness, the defendants ordered delivery and received ice under their contract. In the fall of 1901, the defendants ascertained that they could obtain no more ice from the plaintiffs. They had then received about 8,650 tons. They owed the plaintiffs for some of the later shipments. For the amount .due for these the plaintiffs sued. The defendants replied that they were entitled under their contract to 12,000 tons, that they had not received the full amount and had been compelled to buy ice elsewhere to their damage. They claimed to set all the damages thus incurred against the claim of the plaintiffs and demanded a certificate from the jury for the amount in excess of that claim.
The whole question in the case is whether under the contract between the parties, the defendants were entitled to all of the unsold ice in the house, estimated at 12,000 tons, or to the absolute amount of 12,000 tons.
All the light accessible by testimony was thrown upon the construction of the contract. The defendants said that they were told only of one sale of ice made out of the house before the execution of their contract. The plaintiffs said that the defendants were told of several contracts in advance of their own. Proofs on both sides of this proposition were freely admitted.
Had there been no evidence admitted to elucidate the contract by oral testimony, the meaning might have been adopted by the court as suggested by the plaintiffs, namely, that 12,000 tons were a mere estimated amount and not a guaranteed quantity. The court, however, submitted the whole question to the jury as to what the parties intended when they entered into the relation out of which this controversy arises. The jury found for the plaintiffs and the verdict was entered for the amount of their claim for the ice delivered but for which payment had not been made.
The defendants complain that they were prevented from showing conversations of the parties held before the execution of the written contract. Such evidence was not admissible in the form in which the questions were asked. Further, it was not offered to prove that the inducements alleged to have been *150made by the plaintiffs were false or fraudulent or that the statements alleged were intended to deceive. Further yet, all of the testimony alleged to have been erroneously excluded was in fact, adduced elsewhere on the trial in its entirety to the extent to which it was legally offered. We can find no injury done to the defendant by any of the rulings of the court. A fair interpretation of the trial is that the jury believed the construction put by the plaintiffs upon the contract and rendered a verdict consistently therewith.
The judgment is affirmed.