98 N.Y.S. 262 | N.Y. App. Div. | 1906
There are two causes of action set forth in the complaint herein — the first for money had and received and -the second for an-alleged breach of a contract for the sale of goods by sample. On the trial the controversy was limited- to the issues arising on the first cause of action, as, to which the defendants, in their answer, interposed -a general denial. There is no serious dispute concerning the material facts of the case. The defendants, .copartners, about the 21st of April, 1902, had for sale 4 carload of merchandise called “ apple-waste.” One Gibbs,, a broker, ascertaining that fact and acting on hehal'f of the defendants offered that merchandise for sale to the plaintiffs aOa price of $1.85 a hundred pounds; the quality to be. “ prime bleached waste.” The plaintiffs agreed to buy the goods if the quality were suitable and, in order to ascertain that, a sampling order appears to have been required. The broker reported
" The NewYork Central & H. R. R. R.,
33rd Street Station, N. Y.:
“ Gentlemen.—Please allow bearer to sample waste and chops in lot # 1068 and oblige,
“ Yours very respectfully,
'“CHARLES T. HOWE & CO.”
When the order was delivered to the plaintiffs, Gibbs was told that they could not for-certain reasons inspect the merchandise that day and he then volunteered to have one Eoy, employed by him or liis firm, make the examination for the plaintiffs, who agreed that that should be done. Foy was sent to the Thirty-third street station ■ of the carrier, and when he arrived there in search of -the car containing the merchandise, he applied to the person “ in - charge of that department,” to point out' the car from the contents of which the samples were to be taken and he exhibited the sample- order. was told that the company did not recognize lot numbers, "but only car numbers. Foy then inquired for the car number corresponding with the lot number; and was told' that .thei car number was .33184, and he wrote that number on the sample order. He then went to a .dock on which the car was standing, presented the" order to the railroad company’s foreman and sampled the merchandise in that car. •
The applewaste which the defendant intended • to sell was not contained in car Ho. 33184, but was actually in a car Ho, 13877. That in car Ho. 33184 was sound and of prime quality. That in car Ho. 13877 was-of inferior quality and'wpuld have been rejected by the plaintiffs. The samples taken by Foy were satisfactory to . the plaintiffs. After'the sampling the- defendants called upon the plaintiffs for payment and presented their bill. Mr. de Wolff (one of the plaintiffs) directed attention to- the fact that, on the bill rendered the car- number mentioned was -13877, whereas on the examination order Ho. 1068 was mentioned and asked' for an explanation of the discrepancy, The defendant Howe thereupon
It is scarcely necessary to cite authorities in support of the doctrine that money paid under a mistake of fact may be recovered back in an action for money had and received, where the money is paid in consequence of a mutual mistake' as to facts which, if known, ■would have prevented the payment; that an error of fact takes place either when something which really exists is unknown or some fact, is supposed to exist which really does not exist; and that the action will lie unless the mistake results from inexcusable neglect'by the party paying, and there was no legal or. moral obligation on his part to pay or the payment was made intentionally without reference to the state of facts under which it was made.
It is plain upon this record that the defendants intended to sell and the plaintiffs to buy a carload of applewaste of prime quality. It is also clear that both -parties intended that the goods should be inspected or sampled upon an order applying to a caidoad of merchandise in the possession of the railway company and that the defendants intended to furnish a sample order which would identify the merchandise, and that the plaintiffs in the first instance relied upon the order furnished as sufficient for that purpose. The defendants made an original mistake in sending the order as sufficient. It
In this view of the case it is immaterial whose agent Toy was in making the examination. The money was paid under a mutual mistake of facts and the plaintiffs were entitled to recover.
The judgment and order must be affirmed, with costs.
O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.
Judgment and order affirmed, with costs. Order filed.