Carpentier v. Minturn

6 Lans. 56 | N.Y. Sup. Ct. | 1872

The judgment was affirmed; and the following» opinion, given hy Gilbert, J., below, adopted as that of the court, viz.:

Gilbert, J.

I think the demurrer is well taken.

The California statute of limitations is not a bar here. Nor can it have the effect of varying the contract. That was made, and was to be performed in California. The law of that State, therefore, governs the contract. By that law the exorbitant rate of interest was lawful, and the plaintiff may enforce the contract in that respect as well as any other.

With respect to the counter-claim, it is alleged that there was a failure of the consideration of the defendant’s obligation, for the reason that the plaintiff sold the defendant an exclusive ferry right, whereas, the right which actually passed under his grant was not an exclusive one. The plaintiff transferred precisely the right which was granted to him by the town of Oakland. The defendants enjoyed the subject of the grant during the time the payments sought to be recovered back were made. After these payments were made it was judicially determined that by a proper construction of the act of the legislature of California, by which the right to establish ferries was conferred upon the town of Oakland, no power to grant an exclusive right was given. No doubt this very much impaired the value of the ferry right which the defendants bought of the plaintiff. There is no averment, however, of any fraud or misrepresentation or surprise. Both parties, no doubt, supposed the grant made by the town of Oakland was that which it in terms purported to be, an exclusive one. The mistake arose from a misconstruction of the statute of California under which the grant was made. This clearly was one of law, and not only that, but of the general law of the land. There was no mistake as to any fact in the transaction.

I think it would be unsettling a well established and salutory rule to allow the defendants to take advantage of such a mistake. The cases cited by the counsel for the defendants are not'in conflict with the rule. In all of them there were other ingredients, independent of the mere ignorance of law. The mistake of law was not per se the foundation of relief, but was only the medium of proof by which some other ground of relief was established.

There must be judgment for-the plaintiff on the demurrer, with costs, with leave to the defendants to amend on payment of costs.