Rovegno v. Defferari

40 Cal. 459 | Cal. | 1871

Wallace, J.,

delivered tbe opinion of tbe Court, Rhodes, C. J., Temple, J., and Crockett, J., concurring:

It is not disputed tbat Cassinelli was at one time a co-partner with tbe defendant, owning an interest of one-third in tbe copartnership. Each of tbe parties to tbe controversy, Rovegno and Defferari, claims to have purchased tbat interest from Cassinelli, and this is tbe only question presented here.

It was determined below, and we think correctly, 'that Rovegno was tbe purchaser of tbat interest. Tbe facts are, tbat on March 17, 1869, Cassinelli agreed to sell it to Rovigno, and then received part of tbe purchase price; tbat on the next day (March 18th) Cassinelli and Defferari entered into a treaty concerning tbe sale of this interest to tbe latter;' tbat this was in tbe joresence and with tbe consent of Rovegno. On this occasion a sale of this interest was supposed to have been made by Cassinelli to Defferari; but it turned out afterwards tbat tbe parties to tbat transaction (Cassinelli and Defferari) had entirely misunderstood each otheras tó tbe price to be paid. Cassinelli thought tbat be was selling for $850, and Defferari supposed himself to be purchasing at $750. Upon discovery of this mistake tbe latter refused to take tbe interest at $850. On the 22nd March tbe sale from Cassinelli to Rovegno was made, pursuant to tbe agreement of March 17th, and a bill of sale was then made to tbe latter.

Upon tbe ascertained fact tbat Cassinelli and Deffarari were each mistaken as to tbe purchase price of this copart-nership interest, and each was, therefore, assenting to a supposed contract which bad no real existence, it results that there was no valid agreement, notwithstanding tbe apparent assent of eacb. It is in principle like tbe case of Phillips v. Bristolli, (2 B. & C. 511), where it appeared that the defendant, who was a foreigner, not understanding the English language well, attended an auction sale in London, and there bid eighty-eight guineas for certain goods, which were, thereupon, knocked down to him, and when sued for the purchase price, he set up in defence that he supposed he was bidding only forty-eight guineas for the goods, and that the mistake grew out of his imperfect knowledge of the English language, in which language the auction was conducted. Chief Justice Abbott left it to the jury to find if the defendant had been mistaken as to the price bid, the Court being of opinion that if such mistake had really intervened, the parties could not be said to have entered into a contract at all.

Judgment and order denying new trial affirmed.