62 N.Y.S. 267 | N.Y. App. Div. | 1900
In the view which we take of this case, it is not necessary that we examine in detail the complicated state of facts which surround the dealings between the parties to the action. A brief review of the general features of the case, and of that particular part of the testimony which controls our decision, is all that is essential to a disposition of the case, under the rules of law which we deem applicable thereto.
• ■ The plaintiff was a wholesale butcher and slaughterer of cattle, had been since 1858, and during the years covering the transactions which were the subject of investigation upon the trial, had on the average killed about 1,500 head of cattle weekly, being one of the four largest slaughterers and dealers in hides in New York city. He was also a purchaser of fresh hides from other • killers in the city, the extent of such purchases running about 150 hides per week. .The cattle which he slaughtered were divided into three' classes, known to the trade as natives, Texas and Colorados. The natives, for the most part, were cattle whose hides were free of brands. ■ The Texas. and Colorados were branded upon the sides and the buttocks, and were known to the trade as sides and butts. In price the natives were the highest • and the Colorados the lowest. The determining fact regulating the price, aside from the quality of the hides themselves, was the presence or absence 'of brands, the side brand being more damaging than the butt brand. The hides were also subject to other imperfections which detracted from their value, occasioned by grubs which were present in the hides during certain seasons of the year, and also by injuries, usually in the form of cuts made by the butcher in removing the hides. As the hides were removed they were salted and placed in what were termed beds, about 800 being placed in a bed. A shingled bed was made by lapping, in manner similar to shingles laid, upon a roof, so as to make one side lower than the other. This was for the purpose of removing the moisture from the hides ; the pressure excluded the blood and water and decreased the weight of the hides. Another method was to
The defendants were dealers in hides which they purchased from the various killers. The firm was originally composed of Daniel B. Eayerweather, Edward It. Ladew and Harvey S. Ladew. In 1889 Harvey S. died and Joseph II. succeeded as a member of the firm. In 1890 Eayerweather died, and the business lias been conducted by the defendants since that time. There was a market price for hides in the city of New York during all this time, which was made up by the number of hides furnished to the market in New York and Chicago, and was influenced by the number and character of hides offered for sale. There was quite a large number of brokers and dealers in hides in New York. The market price was arrived at to some extent by communication between those who dealt in the article, by reports of sales and prices quoted.. No regular public market quotations were introduced in evidence, but proof of such reports was given by at least one broker, and the use made thereof. The published reports offered in evidence were not received. The defendants were much the largest purchasers in the market, taking from seventy-five to eighty per cent of the output. Their statement of the market price was determined in the manner above stated.
The plaintiff’s first cause of action is based upon a contract which is alleged to have been entered into between the plaintiff and defendants prior to June 26, 1891, whereby plaintiff was to sell to defendants the hides of the cattle killed by him in his business, to salt them shingled, and dress in a careful manner, the defendants to remove the sanie from plaintiff’s premises, to render to the plaintiff on the last day of each week a statement of the hides so purchased and removed, and ytromptly to pay for such hides the highest market price, together with an additional sum of one cent a pound for bhingled hides and an additional sum of ten cents per hide for those carefully dressed; that subsequently, and on June twenty-sixth, the same was modified by reducing the additional sum which the defendants were to pay for salting and shingling from .one cent to three-quarters of a cent per pound ; that the defendants continued to take
Plaintiff’s second cause of action arose out of the same state of-facts as the first, except that it embraced but one weekly statement, that of June 4, 1892, the correctness of which plaintiff denied, and notified the defendants that he accepted the check accompanying* the statement as payment upon account, and not in discharge of defendants’ indebtedness to him. The complaint was amended upon the trial, but not in such manner as to change the facts .as averred therein, except as to the amount which the plaintiff claimed to be entitled to recover, which exceeded the sum originally demanded.
After a trial the referee found upon the first cause of action stated in the complaint that the weekly statements were incorrect during the months of October, November and December, 1891, and that the plaintiff was entitled to have the same opened and corrected as prayed for in his complaint on the ground of a mutual 'mistake of the parties; and as to the second cause of action he found that the complaint should be dismissed. The decision proceeded upon the ¥ ground that the defendants in rendering to the plaintiff the weekly statements of account under the first modification of the agreement as heretofore stated, intended to pay the plaintiff the full market value of his hides; that the plaintiff trusted the defendants and believed that their weekly statements were true; that as matter of fact the amount - so paid, which was covered by the weekly state
The basis of the referee’s conclusion is, therefore, clearly and sharply defined, His first conclusion proceeds upon the ground that as the defendants were to pay the highest market price and an additional bonus for shingling, etc., the plaintiff had the right to rely thereon without making any examination of the statements, resting in the belief that the defendants were paying him the highest market price for his hides, and that no duty was imposed upon the plaintiff to make any examination whatever; that the modified agreement under which the defendants were to pay for his hides, salted flat, as much as anybody else would pay, imposed upon the plaintiff the duty of informing'himself whether in fact anybody else was paying more than the defendants tendered as the price under such arrangement.
The defendants appeal from that part of the judgment which directs a recovery against them. The plaintiff appeals from so much of the judgment as dismisses his complaint upon the second cause of action.
In the disposition of this case, therefore, we are brought to con
It is entirely clear that the plaintiff, who had then been in the business of slaughtering cattle and selling hides in the city of New Yoi'k for twenty years, and'conducted the same successfully, having a weekly output of 1,500 hides, must be presumed to have known the conditions under which the sale of hides was carried on in New York, and to have had the means of informing himself of the market price of such hides, whether they were sold according to a particular classification or whether they were averaged in price as a mixed lot in the ]>eds. • Such a condition creates the conclusive presumption that, as he had been continuously engaged in the sale of hides for twenty years, he had knowledge of their value. It may be true that the defendants and their predecessors, being extensive ■dealers in hides in New York, their purchases, to a very great ■extent, governed and controlled the market price; but it is equally true that the plaintiff, during the same period of time, had an output of nearly 1,500 hides weekly, which he must have sold upon the market, and, therefore, he must have been presumed equally to know the conditions which fixed the market price, and the market price itself, and possessed the means at any and all times of thus informing himself. It is noticeable, also, that this arrangement provides not only for the output of the hides removed from the ani-, mals which the plaintiff slaughtered, but also embraced hides which the plaintiff might purchase in the market. His testimony upon the subject of the purchase of hides in the market is pertinent and important and conclusive upon his knowledge. It appears that he purchased from a number of dealers, some in Albany, and quite largely from a Brooklyn concern, his purchases averaging 150 hides •a week. Upon this subject he states: “ The hides that I bought from the Brooklyn concern, I salted and cured myself. * * * I always had paid to the Brooklyn concern the highest market price that fresh hides were bringing in the market. * * * The difference between the price for fresh hides and the price for salted hides was from one and a half cents to two cents a pound. I paid for the fresh hides that I got, weekly. Q. Did you fix the price % A. I paid them the highest market price. They left it to me-; they '
It is no answer to say that the hides which the plaintiff purchased were in many instances incumbered with the tail, the head and the-horns. The testimony disclosed that all these parts of the animal, have a market value, and Were sold by the plaintiff in the market,. ' So that whether he bought other parts with the hide, or whether he-bought the hides clear and distinct, his.knowledge of their value-
We must, therefore, regard the plaintiff, for all the purposes of 1 determining this controversy, as possessed of knowledge substantially equal to that possessed by the defendants. Under such circumstances, and under the arrangement as testified to by him by which the dealing was carried on, the plaintiff could not shelter himself behind a conclusive reliance upon defendants’ statement of the market price, and not make use of the equal knowledge which he possessed to determine whether the returned valuation of his hides by the- defendants, as- given in the weekly statements, represented the highest'market price.
Disposition has been made of this case upon the theory that there has been a mutual mistake of parties. We think, that upon the testimony it is too clear for argument that the defendants were not mistaken in anything that they did in respect to this market price. It is not disputed that they made the inquiries, or that, based upon, such inquiries, they fixed the market value of the plaintiff’s hides. It is equally true, as we have seen, that had the plaintiff made examination . of the weekly statements, if there was any discrepancy between the highest market price and the price set out in the statements he could immediately, have discovered it. It is true that an.
■ It, therefore, rests solely upon mistake, and such mistake must have been mutual. The mistake of one is not sufficient. (Welles v. Yales, 44 N. Y. 525.) ■ It is equally well settled' that the burden of establishing such mutual mistake rests upon the party who asserts it, and it must be made out by clear and satisfactory proof. (Southard v. Curley, 134 N. Y. 148.) It is also a familiar rule that the party who asserts the existence of a mistake must show that he has not been lacking in any care or. vigilance which the circumstances demanded of him. Nor is it required that both parties shall stand upon the same footing in all respects as to knowledge and information, in order to relieve the party of vigilant care for his own interests; if they stand upon a footing of substantial equality, then in the absence of fraud each is bound by the terms of the contract and the fulfillment of its obligations. (Stettheimer v. Killip, 15 N. Y. 283.) Applying these rules to this case, we think it clearly appeared that the plaintiff was possessed of the same information, or the means of obtaining it, of which the defendants were possessed ; and ás the latter paid what they deemed to be the highest price they made no mistake in that regard. As the plaintiff was possessed of the means of informing himself of the prices which the defendants by their acts asserted were the highest• •market prices, and might by the exercise of reasonable vigilance and care have informed himself, a case was not made which authorized" the court to find that there' was a mutual mistake of the parties. The contract in terms provides that a settlement of the account shall be made at the expiration of each week. The statements which were rendered by the defendants to the plaintiff constituted an account stated of the weekly transactions between the parties.; and as the parties dealt in respect to the subject-matter, both as to kind and quality of hides and market price, upon a basis of substantial equality, such accounts became accounts stated, and the acceptance and retention of the check .made a completed transaction and bound the plaintiff in accordance with its terms, even though in fact the market
In this regard we are unable to concur with the views of the learned referee in disposing of this case. He seems to have considered that payment of the “ highest market price ” stated in the first arrangement, and “ as much as anybody else ” would pay for the hides, as stated in the modified contract, created a condition for the application of distinct and antagonistic principles. We are not able to see any distinction between the obligation imposed on the plaintiff to give the same care to the subject of ascertaining whether he was receiving the highest price paid by anybody else, and that of ascertaining whether he was receiving the highest market price. In order to determine the latter, substantially the same steps would be required as to inform himself of the former. Indeed, the condition of the modified agreement was but another form of-stating the market price. It would be quite doubtful, if the plaintiff sought to enforce the latter contract upon the basis of demanding what was paid to another seller under exceptional circumstances, whether he could do so, because the fair and reasonable intendment of such language would be that he should receive as much as anybody else for a similar commodity under similar circumstances; and this would be only another way of stating that he was to receive the highest market price. He could no more sit passively and make no inquiry in the one case than he could in the other. The market price of the article was equally, to be determined by inquiry and from actual transactions. What was the highest sum paid to any one else would be discovered by inquiry and actual transactions. We should readily agree with the claim of the plaintiff that if he was entitled to recover under his first cause of action he was equally entitled to recover on his. second, as we believe that no sound distinction can be drawn between the phraseology used upon- each of the two occasions.
It is said that the plain tiff was excused from examining these reports for the reason that he was absent from the city during the period for which the recovery was had. His testimony is not entirely clear as to the length of time he was absent. He states that his wife died on July twentieth, and follows that by the: statement that he was-absent from his business about three months. If this absence dated from the twentieth of July, then'he would have returned by the
The judgment should be reversed and a new trial granted.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.