
    Alfred Davis, Respondent, v. Hugo Reisinger, Appellant.
    First Department,
    July 15, 1907.
    Sale by sample — mutual mistake — evidence of damage.
    When a seller agrees to deliver “Bassein.'rice like the sample” and it appears' • that the sample was not Bassein rice,, but Java rice which was of superior quality and. commanded a higher price and that á mistake had been made in preparing ' the sample, and neither the buyer nor seller was aware of it, neither being - familiar with the two kinds of rice, the buyer can only hold-the-seller, if at all, on orders given while the mistake as to the sample Was mutual. When the buyer discovers the error, the parties are no longer on equal footing and he cannot .hold the seller for subsequent orders on that sample.
    The foreign market price of goods having no domestic market cannot be shown by letters received by the buyer or by an isolated.purchase made by him in the ■ foreign market. ■ • ' .
    McLaughlin, J., dissented, with memorandum.
    
      Appeal by the defendant, .Hugo Reisinger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf New York on the 30th day of June, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29'th day of June, 1906, denying.the defendant’s motion for a new trial made upon the minutes.
    
      William A. Jenner, for the appellant.
    
      Edward S. Rapallo, for the respondent.
   Houghton, J.:

The action is to recover damages for failure to deliver 1,000 bags of rice sold by description and sample.

On May 13,1903, the defendant solicited the plaintiff to buy, and on that day he purchased 250 bags of ^Bassein rice like sample A A” to arrive at .0255 per pound, and having sold this invoice at an advance, three days later he purchased another lot of 250. bags at the same price, which lot he also sold. On the nineteenth of May he purchased 500 bags more at .0260. fThe sample upon which the trades were made was not Bassein rice but Java rice, which is a' superior grade arid always commands a higher price in the market. A mistake liad been made- by some one in preparing the sample, and when the first lot was purchased neither the plaintiff nor the defendant was aware oHitf for neither was familiar with the two kinds of rice. From the evidence it may also, perhaps, be inferred that when the second lot was purchased the plaintiff did not know .of the mistake although he appreciated he was getting á yery good bargain. fXs to the first lot, and possibly as to"the second lot, plaintiff and defendant dealt on an equal footing, neither knowing the ■ sample was' -not Bassein rice, and defendant must be held to his bargain to deliver the rice which the sample called for.- When the last purchase of 500 bags was made, however, it is manifest from the evidence that the plaintiff had learned of the defendant’s mistake, and knew or had reason to believe that the sample was Java rice and not Bassein rice, which the defendant mistakenly supposed it to be. When this last contract was made, therefore, the plaintiff knew that defendant had made' a mistake respecting the sample, and was' offering a high grade, and high-priced rice for sale at the price of a low or medium grade rice which lie supposed from tlie description of Bassein ” he was selling.

The plaintiff cannot' recover -any damages under a contract entered into under such circumstances, for having knowledge of the mistake , undér -which defendant was laboring it would be a fraud _on his part to take advantage of it.^Z The plaintiff as early as when he resold- the first -lot- of 250 bags was told by an expert that the sample looked like Java rice, and lie says several men in the trade talked of the fact .-that Java rice was being sold for Bassein rice between his first and last purchases; ' a

From the facts appearing the extent of plaintiff’s recovery should be his damages on his first and second purchases and'nothing for his last purchase of 500 bags. -

The damages as recovered are-subject of computation, and we-should- be inclined to modify the judgment by deducting the proportionate amount'allowed for the 500 bags were it not for the fact that there is considerable doubt whether plaintiff properly proved' his damage at all. Assuming that the plaintiff proved there was no market in New York'city,, the port: of. import of both Java, and Bassein ricé, the plaintiff failed to show by competent evidence the market price at London or. Botterdam.. The letter of plaintiff’s correspondents in London was not competent for that purpose, nor did plaintiff’s purchase of 500 bags at 03.48 prove that to be the lowest or fair market price in London. Very possibly plaintiff did purchase as low -as he was able, but there is no-legal proof of. that fact. ' .- -

There seems, therefore, to bé no alternative, under our view of ' the law and the facts, except to order a retrial of the whole controversy. The judgment and order should be' reversed and a new trial granted, with costs to the appellant to,abide the event.

Patterson, P. J,, Laughlin and Lambert, JJ., concurred; MoLaughlín, J., dissented.

McLaughlin, J. (dissenting).:

I dissent. The sale was by sample and the rice, from which the sample was- taken was in existénce. . The plaintiff is -entitled to the benefit of his contract. He - acted honorably- with and did not practice a fraud upon the defendant, and has recovered no more than he is entitled to. He offered the best proof as to the damages which was available. .

The judgment is right and shonld be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  