Flint v. Lyon

California Supreme Court Jan 15, 1854Published

Before: Heydeneeldt, Murray

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Holding. The court held that a contract for the sale of a specific brand of flour was void for mistake where the goods delivered were of a different brand, and that the defendant was not bound by the partial acceptance of the goods by a sub-vendee.

Issues

Whether the acceptance of a portion of the cargo by a sub-vendee constitutes a binding acceptance of the entire cargo under a contract for a specific brand of flour.
Whether a vendee may assert a breach of warranty as a defense in an action for the contract price.
Whether a contract for the sale of a specific brand of goods is void when the goods delivered are of a different brand.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The use of the word “ Haxall ” in the sale-note amounted to a warranty that the flour was Haxall.”

“The contract was founded in mistake, both parties supposing they were contracting concerning a certain article which had no existence, consequently the contract was void for want of the substance of the thing contracted for.”

Synopsis

Appeal from the Fourth Judicial District.

This was an action to recover upon a contract for two thousand barrels of flour sold by plaintiffs to defendant, and named in the sale-note as Haxall flour. The complaint stated that the plaintiffs had tendered to the defendant the requisite number of barrels of flour, as a compliance with the contract on their part; that defendant refused to accept the flour so tendered, whereupon the plaintiffs sold it, and brought this suit for the difference between the contract price and the price realized.

The defense was that the defendant had demanded a delivery of the flour, according to the terms of the contract, ,or a recision of it, and that plaintiffs had failed to comply with the contract according to its terms.

Upon the close of the testimony, which is fully stated in the opinion of the Court, defendant moved for a nonsuit, which was refused, and he appealed.

The name used in the contract of sale is a warranty that the article sold corresponds. (5 Barn, and Aid. 240; 4 Cooper, 144; 2 Pick. 214; 2 Harr. & J. 495; Story on Contracts, 526, 527; 13 Mass. 144; 14 Mass. 106; 1 Johns. Ca. 341, 342; lb; 168; 3 >Bos. & P. 201, 506, 510, 514; 6 East. 382.)

There was no contract, because of error by both parties in regard to the subject matter of the contract. (1 Poth. 12; 7 * Rob. 172; 10 Rob. 404; 2 Sumner, 395; [18] 1 Pet. 63-70; Leach v. Mullet, 3 Carr. & P. 115; 14 C. L. R. 479; Chitty on Contracts, 297; Puffendorf, B. 1, Chap. 3, Sec. 12.)

The contract is entire. (12 John. E. 165; Story on Contracts, Sec. 23; 6 T. E. 320; 5 Denio E. 406; 5 Met. 453.) The contract was executed. (5 B. & A. 313; Story on Sales, See. 290; 4 B. & C. 947.) The purchaser must return the goods received, or he cannot rescind the contract. (Hunt v. Silk, 5 East. 449; Miner v. Bradley, 22 Pick. E. 457.) The misstatement forms the subject of compensation. (1 Camp. 340; 1 Wood & Eob. 207.) To avoid a contract the misdescription must affect a material and substantial part of the contract. (Story on Contracts, 340-1 — note; 3 Camp. 284; lEy. and Mood, 39; Stewart v. Alliston, 1 Wend. 26.) The word “Haxall'’ was mere representation. (7 Mass. 286; 7 S. & E. 480; 1 Ark. 269; 20 Johns. 196; 3 Bibb. 35; 4 Hob. 451; 3 Dana, 129; 2 Sears, 22; 18 Yt. 390.) The misrepresentation, however delusive, forms no ground for the recision of the contract. (3 Dana, 479; 12^ Yt. 505.) Yendee must resort to his action on the warranty. (2 Hill, 288; 3 Hamp. 581; 10 Watts, 107; 19 Yt. 536; 12 Wheat. 183; 8 Wend. 109.)

Mr. Ch. J. Murray deliveréd the opinion of the Court.

Mr. J. Heydeneeldt concurred. This was an action to recover the contract price of two thousand barrels of flour. The facts of the' case are these: On the 13th of January, the plaintiffs sold the defendant a cargo of flour, and executed a sale-note in these words:

“ San Francisco, January 13th, 1853.

“ Sold, this day, to Joseph Lyon, Esq., the cargo of Haxall flour now on board of the bark Ork, lying in the harbor, [19]and being about two thousand barrels, on the following terms and conditions, viz: Joseph H. Lyon, Esq., agrees to pay Messrs. Flint, Peabody & Co., thirty dollars per barrel for all such as shall inspect “ superfine,” and twenty-seven dollars per barrel for such as shall inspect “bad;” payments to be made as it may be delivered, and to [19] be received and paid for on or * before the expiration of three weeks from date. If Messrs. Flint, Peabody & Co. elect, they can land and store the flour at the expiration of one week, or so much as may remain on board at that time, Mr. Lyon paying storage and drayage expenses.”

On the 25th of January, the defendant sent a note, requesting the delivery of fifty barrels of the cargo, and the plaintiffs executed the following delivery order:

“ San Francisco, Jan. 25th, 1858.

“Capt. of bark ‘Ork:’

“Please deliver the bearer fifty barrels superfine flour, and oblige, Flint, Peabody & Co.”

In compliance with this order, fifty barrels of “ Gallego” flour was delivered to one Gorham, the sub-vendee of the defendant, who received the same, and failed to inform the defendant that the flour did not conform to the warranty.

On the 31st of January, the defendant sold another lot of said flour, and gave the purchaser an order for it; but on discovering that the flour was “Gallego,” and not “Haxall,” the purchaser refused to receive it, and notified the defendant, who, on learning- the mistake, refused to comply with the contract by receiving and paying for the flour; whereupon the plaintiffs sold the same upon account of the defendant, and brought this action to recover the difference.

Testimony was introduced to show the rapid decline of flour in the market after the 13th of January, and also to show that there was no difference in the value of ‘ ‘ Gallego” and “Haxall” flour.

Flint v. Lyon

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