
    Nicolay De Wolff and Christian Christiansen, Copartners Trading under the Firm Name and Style of De Wolff and Christiansen, Respondents, v. Charles T. Howe and William T. Mills, Composing the Firm of Charles T. Howe and Company, Appellants.
    First Department,
    April 6, 1906.
    Sale — mutual mistake o£ fact as to identity of goods sold—when vendee entitled to recovery of consideration paid.
    - Money paid under a mistake of fact may he recovered back in an action lor money had and received when the money Was paid in consequence of a mutual mistake as to the facts, which, if known, would have prevented the payment.
    There is such a mistake of fact either, when something which really exists is unknown, or some fact is supposed to exist which really does not exist.
    
      The -action lies unless the mistake insulted from inexcusable neglect by the party paying, and there was no legal or moral obligation on his part to pay, or the payment was made intentionally without reference to the state of facts under which it was made.. . . ■
    When a vendee,- intending to purchase goods if the samples are satisfactory, , sends a broker to sample the goods, who is given a written order -by the vendor allowing him -to inspect the goods in cars, which order through a mistake of the vendor did not comply with the railroad company’s requirements, by reason of which error the broker sampled a carload of goods superior in quality to, the lot-the vendee intended to sell, the vendor having -refused -t<5 take back the inferior lot delivered, the vendee is entitled to recover the difference between the purchase price and the amount for which he was able to sell the goods.
    Under such circumstances it is immaterial whether the broker who took the samples be considered to have been the agent of the vendor or vendee.
    Appeal by the defendants, Charles T. Howe and another, composing the firm of. Charles T. Howe and Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 17th day of May, 19Q5, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1905, denying the defendants’ motion for a new trial ma.de upon the minutes.
    
      J. Homer Hildreth, for the appellants.
    
      Max J. Kohler, for the respondents.
   Patterson, J.:

There are two causes of action set forth in the complaint herein — the first for money had and received and -the second for an-alleged breach of a contract for the sale of goods by sample. On the trial the controversy was limited- to the issues arising on the first cause of action, as, to which the defendants, in their answer, interposed -a general denial. There is no serious dispute concerning the material facts of the case. The defendants, .copartners, about the 21st of April, 1902, had for sale 4 carload of merchandise called “ apple-waste.” One Gibbs,, a broker, ascertaining that fact and acting on hehal'f of the defendants offered that merchandise for sale to the plaintiffs aOa price of $1.85 a hundred pounds; the quality to be. prime bleached waste.” The plaintiffs agreed to buy the goods if the quality were suitable and, in order to ascertain that, a sampling order appears to have been required. The broker reported to liis principals the result of liis negotiations with the plaintiffs, and the defendants gave to the broker a sampling order, which was taken by him arid delivered to the "plaintiffs... That order is in the following words":

" The NewYork Central & H. R. R. R.,
33rd Street Station, N. Y.:
“ Gentlemen.—Please allow bearer to sample waste and chops in lot # 1068 and oblige,
“ Yours very respectfully,
'“CHARLES T. HOWE & CO.”

When the order was delivered to the plaintiffs, Gibbs was told that they could not for-certain reasons inspect the merchandise that day and he then volunteered to have one Eoy, employed by him or liis firm, make the examination for the plaintiffs, who agreed that that should be done. Foy was sent to the Thirty-third street station ■ of the carrier, and when he arrived there in search of -the car containing the merchandise, he applied to the person in - charge of that department,” to point out' the car from the contents of which the samples were to be taken and he exhibited the sample- order. was told that the company did not recognize lot numbers, "but only car numbers. Foy then inquired for the car number corresponding with the lot number; and was told' that .thei car number was .33184, and he wrote that number on the sample order. He then went to a .dock on which the car was standing, presented the" order to the railroad company’s foreman and sampled the merchandise in that car. •

The applewaste which the defendant intended • to sell was not contained in car Ho. 33184, but was actually in a car Ho, 13877. That in car Ho. 33184 was sound and of prime quality. That in car Ho. 13877 was-of inferior quality and'wpuld have been rejected by the plaintiffs. The samples taken by Foy were satisfactory to . the plaintiffs. After'the sampling the- defendants called upon the plaintiffs for payment and presented their bill. Mr. de Wolff (one of the plaintiffs) directed attention to- the fact that, on the bill rendered the car- number mentioned was -13877, whereas on the examination order Ho. 1068 was mentioned and asked' for an explanation of the discrepancy, The defendant Howe thereupon stated that “the numbers are identical. I simply made a mistake in putting the number 1068, or the lot number, on the sampling order.' The numbers are identical, Ho. 1068 and Ho. 13877; there can be no mistake in the matter, because I had only one car of applewaste on the dock.” It is true that the defendants then owned but one carload of applewaste on the dock, but they had owned another carload, namely that in car Ho. 33184. They had sold it in January, 1902, but it still remained on the dock undelivered to the purchaser, and the consignment still stood in the defendants’ name. The plaintiffs paid the amount of the bill and they received the merchandise, believing it to be prime quality taken from the only car which the defendants had' on the dock. Upon receiving .the merchandise, and finding that it was not of prime quality, the ¡plaintiffs offered to return it to the defendants, but they would not receive it, whereupon it was sold as perishable, and the plaintiffs sued to recover the difference between the amount realized on the' sale and the amount paid to the deféndants. Ho complaint is made-of the conduct of the plaintiffs in that regard.

It is scarcely necessary to cite authorities in support of the doctrine that money paid under a mistake of fact may be recovered back in an action for money had and received, where the money is paid in consequence of a mutual mistake' as to facts which, if known, ■would have prevented the payment; that an error of fact takes place either when something which really exists is unknown or some fact, is supposed to exist which really does not exist; and that the action will lie unless the mistake results from inexcusable neglect'by the party paying, and there was no legal or. moral obligation on his part to pay or the payment was made intentionally without reference to the state of facts under which it was made.

It is plain upon this record that the defendants intended to sell and the plaintiffs to buy a carload of applewaste of prime quality. It is also clear that both -parties intended that the goods should be inspected or sampled upon an order applying to a caidoad of merchandise in the possession of the railway company and that the defendants intended to furnish a sample order which would identify the merchandise, and that the plaintiffs in the first instance relied upon the order furnished as sufficient for that purpose. The defendants made an original mistake in sending the order as sufficient. It was not so, as it referred only to á lot number instead of a ear number. The defendant Howe states in his testimony that he made the mistake. The plaintiffs sending to. the railway company for the purpose of drawing the samples, sought information from a proper source with respect to the car, and the messenger was told that the-identification could not be made by lot number, but must be by car number. Oar Ho. 33184 was pointed out as that which corresponded to the lot number 1068. The deféndants were mistaken in giving an insufficient sampling order and the plaintiffs were mistaken in relying upon the sufficiency of that order. When on presentation of the bill for the merchandise the plaintiffs called upon the defendants for an explanation of the discrepancy between the number appearing on the sample order and that appearing on the bill, Howe stated that there was but one carload there belonging to them and the plaintiffs were justified in believing that that must have been ■ the car from which the samples were taken. As stated before, it is trué that the defendants owned but the one carload, but the other still remained on the dock and in it the sound merchandise Avhich still was in the apparent ownership or control of the defendants was contained. There was on both sides a mistake as to the identity of the car containing the merchandise to Avhich the sample order applied and which the defendants intended to sell.

In this view of the case it is immaterial whose agent Toy was in making the examination. The money was paid under a mutual mistake of facts and the plaintiffs were entitled to recover.

The judgment and order must be affirmed, with costs.

O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment and order affirmed, with costs. Order filed.  