¶1This is an appeal from a judgment of the County Court of Fulton county affirming a judgment of a Justice’s Court.'
¶2The judgment is for a trifling sum, but-may be used by plaintiff as establishing rights of action in his favor against these defendants for very considerable sums; hence its review is of some importance.
¶3The action is based upon a written agreement for the delivery of ice at stated prices during the years 1898 and 1899. The complaint is in writing and sets forth the agreement in full, one clause of which reads as follows : “ And the said Willard and Stockamore, in consideration therefor, agree to pay said Albert M. Banker the said. prices for all ice used by them for and during the years 1898 and 1899.”
¶4TÍie complaint then alleges that since the execution of this agreement “ the defendants have received and used 1,500 pounds of ice of the value of $2.62 which they have -not paid this plaintiff for.” The complaint does not, however, allege that plaintiff delivered this ice or caused it to be delivered'and leaves it for any inference which the literal language of the contract permits. The answer is in part a general denial. The proof .is undisputed and establishes that defendant did use, after the contract was made, 1,500 pounds -of ice; but it also conclusively shows that this ice was hot delivered by plaintiff, but.was purchased by defendants from other parties, perhaps in violation of the terms of the contract, and the proof - also shows that defendants have paid the plaintiff for all ice delivered by him.
¶5In view of the proofs and the peculiar Wording of the complaint, I think the learned county judge gave an erroneous construction to the cause of action in holding that plaintiff sought to .recover for ice delivered by himself. It is quite plain, I think, that plaintiff construed his contract to. mean that defendants must pay him for all ice they used, whether procured from him or from others, and that his- action was to obtain pay for ice at the contract price furnished by others. That this contention cannot be sustained needs no argument. The plaintiff may have a right of .action against defendants for a breach of the contract, but the measure of; his damages is' not necessarily the contract price of the ice. No proof of the actual damages, if' any,-, suffered was offered. . The plaintiff, himself a wit-. *375ness, did not pretend that this ice was delivered by him or by others for him.
¶6I think the judgment should be reversed, with costs to appellants in all the- courts.
¶7All concurred.
¶8Judgment of the County Court and of the Justice’s Court reversed, with costs in all the courts.