
    John Stewart, Respondent, v. Simon Arendt, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Vendor and purchaser — Contract—Consideration.
    Where there is a difference in the amount of the consideration, as stated in' the general provision in a contract for the sale of real estate, and as shown by the terms of payment, the latter must control.
    Appeal from a judgment of.the District Court in the city of Hew York' for the First Judicial District, in favor of the plaintiff.
    Action to recover a sum of money alleged to have been paid under a mistake of fact.
    
      Howard A. Sperry, for respondent.
    Daniel P. Mahony, for 'appellant.
   Bischoff, J.

In form, the Action is for the recovery of money paid under a mutual mistake of the parties as to the requirements of a contract for the exchange of real property. The claim involved no question touching a reformation of the contract, and ■the action may, perhaps, be taken asxone for money had and received, since the fact of any mutual mistake was certainly refuted by the defendant.

For argument, then, we so,view the causo of action, bearing in mind the informal method of pleading and procedure' obtaining in the District Courts.

.The plaintiff was awarded by the. court below the difference between. $108,000 and $108,235, on account of the transaction, in question, the contract in evidence showing that the first-named sum was' expressed- as the consideration, but was to be payable in different steps, as thereafter expressly provided.

These provisions called for an exchange of properties at an estimated value,” and the reciprocal assumption of certain-mortgages, together with the payment of interest and taxes upon the properties respectively exchanged.

That- the difference between these expenses and the amount stated as the consideration was represented by the -amount in suit is not in controversy, but that, under the exact terms of the contract, this difference was chargeable against the plaintiff is also apparent, unless the general statement, that the consideration was $108,000,' should be held to control.

Treating the question as one of law, however, as we should, in view of the contravention of the possible mutual mistake, and upon the statement, made by the justice below that any evidence contradicting the contract would be disregarded, it appears that the issue is actually whether the general provision of the contract, "that the consideration was $108,000, should overweigh those terms which, in explanation of the method of payment, were expressly definite' and particular; and it is elementary that, where the parties have definitely particularized the terms of the contract, an apparently inconsistent general statement in the same regard must yield. Elmendorf v. Lansing, 5 Cow. 468.

There was no' question of fraud in the case, and, failing any mutual mistake, the question was merely as to the proper interpretation of the contract upon general principles,, aside from any inquiry into., the jurisdiction of the court below, to entertain the action. ■

Judgrqent reversed, with costs. A new trial is not ordered, since, upon the contract in evidence, recovery by the plaintiff in this action is impossible.

Mo Ad am, J., concurs.

Judgment reversed, with costs.  