
    SPECIAL TERM.
    JAMES CASSIDY and another v. ACHILLES BEGODEN.
    Before Monell, Oh. J., at February special term,1874.
    I. PAROL EVIDENCE ADMISSIBLE ALTHOUGH THERE IS A WRITING, WHEN
    1. Where the contract is first concluded by parol, and a paper (e. g. a bill of sale) is afterwards drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence is admissible to show the actual terms of the contract.
    2. Sale by sample. Where a broker made a sale of cotton by sample, and made an entry of the sale which contained no warranty and delivered a copy to the parties,
    
      Eeld,
    
    that parol evidence of the custom of the trade, that the sale was by sample, was admissible to establish a warranty (Boor-man v. Jenkins, 13 Wend. 566).
    IT. REFORMATION OF CONTRACT IN EQUITY.
    1. Action for unnecessary, in cases, where the above principle applies, as the terms of the contract may be proved by parol in an action at law.
    2. Mutual mistake' of fact. An action to reform on this ground will not be sustained where it appears that there was a mere understand ing of one of the parties that he was dealing in view of a custom.
    
    3. Implied contract can not be inserted in a writing as an express contract.
    
    Action to reform a written contract.
    Trial by the court without a jury.
    The plaintiffs alleged, that they purchased by sample a quantity of tea of the defendant; that the defendant represented and agreed that the tea should be like the sample shown, and of as good quality; that, thereupon, a written bill of sale, signed by the defendant, was delivered to the plaintiffs, which, however, contained no agreement or warranty, that the bulk of the tea should be like the sample, or of as good quality.
    The relief demanded was that the contract be reformed so as to contain a clause, to the effect that the tea was sold by sample, and was warranted to correspond with the sample.
    One of the plaintiff’s testified, “We saw the samples at the broker’s office, and bought the goods by sample ; the samples were shown to us, there were probably two pounds of tea, representing eight hundred half chests. The teas were in the bonded warehouse. We made an offer for the teas, based on the samples, and wanted to know what we could have them for. That is the custom of the trade. The broker wanted to know what we would give for the teas; we made an offer which was declined, and he named a price that would buy them ; we bought the teas.”
    On being asked “ What was said about the teas corresponding with the samples ? ” the plaintiff answered, “all I can say to that, the invariable custom of the trade, which they will admit there is no dispute about, the goods sold were to be equal to the sample, or else we had a right to reject them.” He further testified, substantially, that it was the custom of the trade, to sell such goods by sample ; and that he made the purchase upon an inspection of the sample only. In answer to a question by the defendant’s counsel, he testified that the broker did not say he guaranteed the tea's to be equal to the samples.
    Mr. Watson, the broker, stated, in his testimony, that no representation or warranty was made or agreed to be made. That the plaintiff looked at the samples and then made the purchase.
    
      
      Mr. Jacob F. Miller, for the plaintiffs.
    
      Mr. Henry J. Scudder, for the defendant.
   Monell, Ch. J.

The claim for relief in this case proceeds upon the assumption, that the written bill of sale contains the whole of the contract of sale and purchase, but which, through a mutual mistake of the parties, has omitted a representation or warranty, agreed upon,, previous to reducing the agreement to writing.

If, indeed the written paper is to be regarded as containing the whole contract of sale, then parol evidence would not be admissible, to show a warranty made orally, at the time of the sale. But where a contract is first concluded by parol, and a paper is afterwards drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence, it seems, is admissible to show the actual terms of the sale, and that there was a warranty, though it does not appear in the memorandum or receipt (Schuyler v. Russ, 2 Caines, 202; Boorman v. Jenkins, 12 Wend. 566 ; Hargous v. Stone, 5 N. Y. 73 ; Koop v. Handy, 41 Barb. 404; Boorman v. Jenkins, sup. is very much in point).

It was a sale of cotton. The broker exhibited samples. The purchaser made an offer which was accepted. The broker made an entry of the sale and delivered a copy to the parties. It contained no warranty. Parol evidence was allowed to show the custom of the trade, and that the sale was by sample, although the memorandum of the broker was silent on the subject.

According to the cases cited, it was unnecessary for the plaintifis to seek a reformation of the contract. They are authorized to prove the custom of the trade, and that the sale was by sample, in their action at law for the breach of the implied warranty.

But the plaintiffs have not brought themselves within the rules governing courts in awarding the reformation of written contracts.

They have failed to show any mutual mistake of fact. They doubtless purchased by sample, and in view of the custom of the trade. But there was no express agreement to that effect.; nor was there any express wa rranty. The mere understanding of one of the parties, that he was déaling in view of a custom, does not make it a mutual understanding ; nor is a mere implication of a different contract, growing out of a. custom, sufficient to authorize the court to reform the contract, by inserting in it, as an express warranty, what was before a mere warranty by implication, arising from a custom of trade.

The defendant must have judgment, as to so much of the plaintiffs’ cause of action, as demands a reformation of the contract of sale.

The defendant to have the costs of this trial, if he ultimately recovers costs in the action.  