Haubert v. Mausshardt
Before: Temple
Synopsis
Sale — Price — Contract Signed in Duplicate — Mistake in Vendee’s Copy — Assignment by Vendee — Liability of Vendee for. Loss. — Where a vendor sells a quantity of wine at a stipulated price per gallon, and the vendee causes a contract to be written, which is executed in duplicate, the vendor signing both copies upon the assurance of the vendee that the two were exactly alike, but by mistake a less price was inserted in one of the copies, which was taken by the vendee and after-wards assigned by him to a third party, the vendee is liable to the vendor for the loss resulting from the mistake, and the fact that the vendor signed both copies of the contract does not make him responsible therefor.
Id.—Vendor’s Knowledge of Assignment—Part Payment by Assignee —■ Novation — Release of Vendee. — The fact that the vendor knew of the assignment of the contract, and afterwards shipped the wine to the assignee, from whom he received part payment, does not show a novation, in the absence of evidence tending to show that he released the vendee from his obligation, or accepted his assignee in his place.
Id. •— Proof of Novation — Presumption. — A contract of novation must be proven as other contracts are, and will not be presumed where the acts tending to show the novation are consistent with the fact that the original party to the contract is being held thereto, and it appears tha t such a course would be more advantageous to the party claiming as against the novation.
Id. — Validity of Novation — Contract — Mutual Mistake.—A contract of novation made under a mutual mistake is invalid.
Temple, C. Defendant's appeal from the judgment and an order refusing him a new trial.
On the 26th of February, 1886, plaintiff sold to defendant the wine in his cellar in Sonoma Valley, for twenty-eight and one half cents per gallon. After the parties had come to an agreement, defendant caused the [435]contract to be written out by a friend, who prepared two copies, supposed to be duplicates. By mistake, however, in one copy the price was put at twenty and one half cents per gallon. Defendant took them to plaintiff, who . read one of the contracts, which chanced to be the correct one, and finding it satisfactory, both parties executed the two supposed duplicates, defendant assuring plaintiff that they were exactly alike. The incorrect copy was not read by either. It does not appear that plaintiff had anything to do with the preparation of the writing, or -whether he even desired or expected a writing to be prepared; nor that he knew that defendant had not read and compared the two.
One copy, which also happened to be the correct one, was left -with plaintiff; the other defendant took, and immediately assigned to one Schmidt, who agreed to receive and pay for the wine and give defendant one half the profits on the transaction. The defendant was not employed by Schmidt to make the purchase, but he knew Schmidt desired the wine, and purchased with the expectation of making a transfer to him.
Plaintiff knew that Mausshardt was purchasing with the expectation of transferring the contract to some one, though no name was mentioned by Mausshardt as a principal. It was, in fact, somewhat in the nature of those contracts which are sometimes called options, only Mausshardt, though not expecting to complete the purchase himself, bound himself by an absolute contract. He expected to make something by selling the contract, and plaintiff must have known this, for there -was something said about a commission, and plaintiff actually gave him twenty dollars as compensation.
The contract assigned to Schmidt was the one in which the price of the wine was stated at twenty and one half cents, and Schmidt denies knowing that the real price agreed upon was twenty-eight and one half, cents. The [436]
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