
    DuPont Chemical Company, complainant, v. Martin D. Buckley, trading and doing business under the name and style of Mathes Vinegar Company, defendant.
    [Submitted November 13th, 1924
    Determined November 19th, 1924.]
    1. Equity will not relieve parties from the consequences of a mistake where there was no mistake as to the identity of the goods sold, but the mistake occurred in the representation of the vendor and the consequent mutual belief that they were made of a certain material which was an element going to quality and usefulness.
    2. Where a mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of a legal duty, a court of equity will not interpose its relief.
    
      On bill for injunction and relief. On hearing at return of order to show cause for restraint.
    Complainant offered to sell to defendant certain secondhand tanks, representing them to be Cyprus tanks. Defendant then inspected the tanks and agreed with complainant on a price. The written contract took the form of a sales order in which the tanks ordered are specified as Cyprus tanks. After shipment it was ascertained were pine tanks; both parties had theretofore believed them Cyprus.
    Action at law has been brought by defendant against complainant for damages. Complainant now seeks an injunction against the pending action at law, and also a rescission of the contract by reason of the mutual mistake.
    
      Mr. J. Forman Sinnickson, with whom appeared Mr. Walter II. Bacon, for the complainant.
    
      Mr. Edward T. Magoffin, with whom appeared Mr. Thomas G. Milliard, for the defendant.
   Leaming, V. C.

This is not the kind of mistake from the consequences of which equity relieves. There was no mistake as to the identity of the tanks; the mistake was in the representation and mutual belief that they were made of Cyprus wood, an element going to quality or usefulness. If this were not so, equity would be privileged to relieve from the consequences of any honest misrepresentation. Any inspection by defendant which did not discover complainant’s error is an immaterial element. In the language of Judge Story: “Where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum absque injuriaI Story Eq. Juris. § 151.

Yor can the equitable notion of mistake arise when the mistake is the result of complainant’s negligence. Prof. Pomeroy thus concludes his analysis:

“Mistake, therefore, within the meaning of equity, and as the occasion of jurisdiction, is an erroneous mental condition, conception or conviction, induced by ignorance, misapprehension, or misunderstanding of the truth, ltut toithont negligence, and resulting in some act or omission done or suffered erroneously by one or both of the parties to a transaction,, but without its erroneous character being intended or known at the time.” % Pom. Bq. Juris. § 839.

The degree of negligence which denies equitable relief is defined in a subsequent section as follows:

“TVIhere the mistake is wholly caused by the want of that care and diligence in the transaction whi?h should be used by every person of reasonable prudence, and the absence of which would be a violation of a legal duty, a court of equity will not interpose its relief.” ITiicl. § 856.

In Graham v. Berryman, 19 N. J. Eq. 29, 35, it is said by Chancellor Zabriskie: “The mistake must be as to a fact, not only not known to the 'party, but one which he could not, by reasonable diligence, have ascertained.” See, also, Hagerty v. McCanna, 25 N. J. Eq. 48; Dillet v. Kemble, 25 N. J. Eq. 66; Voorhis v. Murphy, 26 N. J. Eq. 434; Scott v. Hall, 60 N. J. Eq. 451. The positive representation of complainant that the tanks were Cyprus removed any obligation of special care on the part of defendant touching that element of quality.

The restraint contained in the order to show cause will be dissolved.  