Burgoyne v. Middleton

Appeal from the Superior Court of the City of San Erancisco.

This action was brought by Burgoyne & Co. against Middleton & Claghorn, auctioneers for Fernandez & Peyton, tOn the trial the plaintiff gave in evidence the bill of parcels and other evidence tending to maintain the issue on their part, and among other things, an advance in the price of coffee, shortly after the sale. The defendants, on their part, offered evidence to show that the sale was of no specific quantity; that there was a mistake in the representation at the sale and in making out the bill of parcels, to the admission of which by the Court, the plaintiffs excepted as tending to álter and vary the bill of parcels, the written contract of sale.

The Judge charged the jury as follows:

“ It is claimed by the plaintiffs that the bill of parcels was the contract of sale. I charge you it is not and was not not. The plaintiffs cannot recover in this action unless you believe that the defendants, at the time of the sale, offered and intended to sell 153 sacks.”

The jury, under the charge of the Court as above given, retired, and afterwards returned into Court and stated their inability to agree, whereupon, on motion of defendants’ counsel, the Court directed the jury that they should find a verdict for defendants, and a verdict was accordingly rendered for the defendants, and so recorded by the Clerk. The plaintiffs excepted to this direction of the Court.

1st. The Court erred in admitting parol testimony to vary, alter and contradict the bill of parcels made out by the defendants’ clerk. (Chitty on Contracts, p. 400, and notes.) Also, in admitting testimony to contradict the entry in the sales book to the effect that plaintiff had purchassd 153 bags coffee. (2 Maul. & Sel. 286; 11 Mass. 6; 5 Harr. & J. 117; 6 lb. 249; 9 Met. 83, 87.)

2d. The Court erred in refusing the instructions prayed for.

3d. The Court erred in charging the jury that the bill of parcels did not constitute the contract, and that the plaintiff * could not recover; also, in directing the [66] jury to find a verdict for the defendants, after they had stated that they could not agree.

The sale was void as to any more than 53 bags, on the ground of mistake, as that was the whole balance. ( Story on Contracts, § 419, 420; Lyon v. Flint, Peabody 2d. Defendants are not personally liable, as they, were merely auctioneers, agents for others, and disclosed their agency. (Story on Agency, § 268, 267, 107, 108; Smith’s Mercantile Law, 144; 20 Wend. 431.)

3d. A plain and palpable mistake or ignorance of facts may be shown, to avoid a contract, and even to recover money paid. (Story on Contracts, § 409, 410; Story on Sales, § 145; 1 Story on Eq. Jur. § 140; 11 Pet, 63; 43 Eng. Com. Law Eep. 16; 1 Wend. 355; 20 lb. 174; 2 Eng. Ex. 55; 2 Cush. 81; 9 Pick. Ill; 10 Eng. Com. Law Eep. 199.)