Stevens v. Lakewood Utilities Co.

Ostrander, J.

(after stating the facts). The undisputed testimony presented a single issue for the jury, which was whether the ice on May 15, 1914, was in good shape, in good keeping order. I am satisfied that the trial court intended to submit this as the controlling issue. A charge of considerable length was given which, when read in its entirety, seems to present other issues and to permit a recovery by plaintiff, no matter in what condition the ice may have been on May 15, 1914.

The _ce was stored for the purpose of keeping it for use in warm weather — for use after May 15th — and there are, of course, proper and improper ways of storing it. Plaintiff was, or professed to be, satisfied that his work had been well done. Defendant was protesting that it was illy done. There can be no question about this. The issue might have then been determined according to the facts. It was plaintiff who proposed that time, and some care on his part, would demonstrate that the ice was well stored, a proposal assented to by defendant. It was agreed that the condition of the ice on May 15th should determine whether plaintiff should or should not be paid the remainder of the contract price. If the ice was then in reasonably good condition, defendant could not refuse payment. • However plaintiff may have construed the bargain, the matter in no way involved the personal tastes, sensibilities, fancy, or individual judgment of the party to be satisfied. It is therefore evident that the value of the work actually done was immaterial, and equally evident that if the ice was not in fairly good condition on May 15th the jury was not at liberty to measure the portion of the reserved payment plaintiff ought to receive. Upon the real issue both parties were entitled to present the testimony tending to prove the actual conditions on May 15th, they having agreed, in writ *210 ing, that such condition should determine whether plaintiff should receive any further sum. Plaintiff did not regard the fact that the $220 reached him after April 1st as a breach of the arrangement finally made. On the contrary, he professed to thereafter -continue to do what it had been agreed he should do. His. final demand was based upon the proposition that:

“I have taken care of the ice and kept it packed in good shape to May 15, 1914. There is remaining due me on my contract the sum of $57.80.”

It was error to admit testimony to prove the value of the work done by plaintiff; error to exclude testimony tending to prove the condition of the ice May 15th; error to advise the jury that plaintiff might, notwithstanding default on his part, recover some portion of the deferred payment; error to instruct the jury that the agreement of the parties provided for a forfeiture of $57.80, and that the law abhors a forfeiture.

It is most unfortunate that a cause involving so little should be remanded for a new trial. However, such must be the order.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.