
    (120 App. Div. 766)
    DAVIS v. REISINGER.
    (Supreme Court. Appellate Division, First Department.
    July 15, 1907.)
    1. Sales—Construction of Contract—Sale b'y Description and Sample-Mistake as to Sample. '
    In an action to recover for failure to deliver rice sold by description and sample, where it appeared that the sample was of a better grade than that described, plaintiff could recover for the rice purchased while both believed that the sample was of the kind described, but not for a purchase made after lie learned of the mistake.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, §§ 700, 770.]
    2. Same—Actions for Breach of Contract—Damages—Evidence.
    In an action to recover for failure to deliver certain rice as agreed, the only evidence as to price was a letter from plaintiff’s correspondent in London and the fact that plaintiff had purchased a quantity at a certain price. Held, -that this evidence was not competent, and hence plaintiff failed to prove the damages McLaughlin, J„ dissenting.
    Appeal from Trial Term, New York County.
    Action by Alfred Davis against Hugo Reisinger. From a judgment for plaintiff, and from an order denying a new trial defendant appeals.
    Reversed and remanded.
    Argued before PATTERSON, P. J., and McLAUGHDIN, DAUGHLIN, HOUGHTON, and LAMBERT, JJ.
    William A. Jenner, for appellant.
    Edward S. Rapallo, for 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, 350 bags of “Bassein rice like sample AA” to arrive, at .0355 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 19th of May he purchased 500 bags more at .0260. The sample upon which the trades were made was. not Bassein rice, but Java rice, which is a superior grade, and always commands a higher price in the market. A mistake had been made by some one in preparing the sample, and when the first lot was purchased neither the plaintiff nor the defendant was aware of it, 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 a very good bargain. As 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 he supposed, from the 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 under which defendant was laboring, it would be a fraud on his part to take advantage of it. 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 he 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. 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 rice, the plaintiff failed to show by competent evidence the market price at London or Rotterdam. The letter of plaintiff’s correspondents in London was not competent for that purpose; nor did plaintiff’s purchase of 500 bags at .0348 prove that to be the lowest or fair market price in London. Very possibfy plaintiff did purchase as low as he was able, but there is no legal proof of that fact. There seems, therefore, to be 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., and EAUGHEIN and LAMBERT, JJ., concur.

McLAUGHLIN, J. (dissenting).

I dissent. The sale was by sample, and the rice from which the sample was taken was in existeñce. 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 should be affirmed.  