Johnson v. Kvale

FINCH, P. J.

The plaintiff was given judgment on the pleadings for the sum of $666.60 and interest thereon, the amount demanded in the complaint, and the defendant has appealed. The answer admits an indebtedness of $594.10 but denies any greater indebtedness. Respondent’s brief correctly states the following facts:

“On June 16, 1927, plaintiff sold defendant several lots of sheep, among them 123 lamhs at the agreed price of ten cents per pound. The 123 lambs were weighed by a public weighmaster, and under his seal he issued a certificate showing these lambs to weigh 6305 lbs. Thereupon the parties settled on that basis; the defendant took delivery of the sheep and gave plaintiff his check for $666.60 in payment of the several lots of sheep he then received from plaintiff, including the 123 lambs. Defendant shipped a portion of said sheep and mingled the remainder with others he had elsewhere purchased. Some time thereafter, defendant claims to have discovered that said 123 lambs did not weigh 6305 lbs. as the public weighmaster’s certificate showed but that they weighed only 5580 lbs. Defendant thereupon stopped payment on the check he had delivered to plaintiff. This action was then instituted.”

The answer, among other averments, alleges that the 123 lambs weighed in the aggregate only 5,580 pounds, but that, “by reason of the fact that one of the peas on the scales had been moved without the knowledge of this defendant, or of the public weighmaster in charge thereof, ... all 123 lambs appeared to weigh 6305 pounds instead of their actual weight of 5580 pounds; that said public weighmaster thereupon delivered his certificate to these parties, which certificate showed said lambs to have weighed 6305 pounds, and acting solely upon said weights as described by said certificate, said defendant drew his check in favor of said plaintiff in the sum of $666.60 instead of the correct sum of $594.10. . . . That said check was immediately delivered to the plaintiff. That the making, executing and delivery

[426]

of said check in the sum of $666.60 by defendant was done and performed by defendant through inadvertence and by mistake and through entire ignorance of the fact that the said lambs weighed 5580 pounds only and . . . solely by reason of his said mistaken belief, . . . and had he known that said lambs weighed only 5580 pounds, he would have drawn his check in favor of plaintiff in the sum of $594.10 only.”