
    Wheadon vs. Olds.
    Where a contract is made upon an assumed state of facts in reference to which there is a mutual mistake, money paid under such contract may be recovered back, pro tanto, in an action of assumpsit; and it was accordingly held in this case, where a contract was made for the sale and delivery of oats, and the parties upon a mistaken state of facts, estimated the quantity at a certain number of bushels, for which the stipulated price ivas paid, that the purchaser was entitled to recover back money paid for the difference between the estimated and real quantity; and that, notwithstanding he had agreed to take the oats at the estimated quantity, hit or miss.
    
    This was an action of assumpsit, tried at the Onondaga circuit in March, 1836, before the Hon. Daniel Moseley, one of the circuit judges.
    The defendant agreed to sell to the plaintiff from sixteen, to, twenty hundred bushels of oats, at forty-nine cents per bushel. The delivery of the oats was commended by removing them from a store-house to a canal boat; tallies were kept, and when the tallies amounted to 500, it was proposed to guess at the remainder ; and after a while it. was agreed between the parties to call the whole quantity 1,900 bushels,, and the plaintiff accordingly paid for that quantity at the stipulated price. When the oats came to be measured it was ascertained that there were only 1,488 bushels delivered. It was then found that the mistake had happened' by b,oth parties assuming as the basis of the negotiation, fixing the quantity of 1,900 bushels, that 500 bushels had been loaded in the boat at the time when they undertook to guess at the residue, whereas in fact only 250 bushels had been loaded—■ the tallies representing half bushels and not bushels, and that the parties supposed that the quantity loaded was not a quarter of the whole quantity. The vendor refusing to refund a portion of the money received by him, this action was brought by the purchaser, who declared for money had and received, and delivered a bill of particulars stating the contract between the parties that the oats were delivered, and “ that in measuring said oats “ a mistake was made, whereby the plaintiff paid the defendant t{ for about 300 bushels more oats than he received.” The de* fendant proved by one witness that the plaintiff said he would take the oats at 1,900 bushels, hit or miss, and by another that he had acknowledged that he took the oats at that quantity at \ his own risk. He further proved that before the boat left the store-house, on dissatisfaction being expressed by a friend of the plaintiff who was to advance the money for him, as to the mode of ascertaining the quantity, that he told them that if they were dissatisfied with the quantity, to put the oats back into the store-house, and pay him for his trouble. When the evidence was closed-the counsel for the defendant stated that he should not question the fact that the parties were mutually in error in ;, supposing that 500 bushels of oats had been put on board when in fact only 250' bushels had been put on board at the time of the bargain in reference to the quantity, but insisted that the bargain was obligatory upon the plaintiff, and that therefore he was not entitled to recover. He also insisted that the proof varied from the bill of particulars; and thirdly, that at all events the plaintiff was only entitled to recover for the deficiency of 250 bushels in the first estimated quantity. The judge i charged the jury that if they should find that the parties at the time of the bargain in reference to the 1,900 bushels were in error as to the quantity measured, and supposed that 500 bushels had been measured when in fact the quantity measured was only 250 bushels, and had based the bargain upon that supposition, then that the plaintiff was entitled to recover for the deficiency of the 1,900 bushels. The jury found a verdict for the plaintiff Í for $190. The defendant moves for a new trial,
    
      S. Stevens, for the defendant.
    
      J. L. Wendell, for the plaintiff.
   By the Court, Cowen, J.

The objection at variance from the bill of particulars was too general. It should have been stated whether it was in quantity, or sum, or in what else.

The mistake as proved went not only to the quantity measured, but the jury found, under the charge of the judge, that relatively it influenced the entire agreement to take the oats at 1,900 bushels. One ingredient of estimating the residue, as talked of, was the assuming that the supposed 500 bushels was one-fourth of the pile, which would operate unfavorably to the plaintiff", if he reasoned from the size of the smaller to that of the larger pile. Here was an admitted error, which certainly influenced the conduct of the plaintiff to the extent of 250 bushels ‘ and, as we must take it on the finding of the jury, to the full amount which the oats came short of the 1,900 bushels. All the excess of payment arose from a count of half bushels aS bushels. And the only question in the least open is, whether an agreement, based on that mistake, to accept the' oats at the plaintiff’s own risk of the quantity, shall conclude him. The mistake which entitles to this action, is thus stated by the late Chief Justice Savage from the civil law: “ An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.” Mowatt v. Wright, 1 Wendell, 360. He cites the words of 2 Ev. Poth. 437. And see 1 Dom. 248, B. 1, tit. 18, § 1, pl. 1. In judging of its legal effect, we must look “ to the regard which the contractors have had to the fact which appeared to them to be true.” 1 Dom. 250, B. 1, tit. 18, § 1, pl. 11. And when we see that the agreement is the result of such a regard, or, as the .judge said to the jury, is based upon it, I am not aware of any case or dictum, that, because part of the agreement is to take at the party's own- risk, or as the parties expressed it here, hit or miss, it therefore forms an exception to the general rule. The agreement to risk was, pro tanto, annulled by the error. The money was paid under a contract void for so much as the oats fell short of 1,900 bushels. The effect would have been very different, had the truth been known to the plaintiff. See Bdmat as before cited. The foundation of the arrangement to take at the plaintiff’s risk, was a misreckoning, bae number being put instead of another, “which,” says Domat pl. 12, “ is a kind of error in fact different from all other errors, in that it is always repaired.”

The motion for a new trial is denied.  