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the price carried out opposite each 248, where the plaintiff purchased item, which items amounted to the "about 3,000 bushels of No. 3 red oats sum of $2,080. At the foot of the es- in good and even weight bags June timate there was a receipt for the sum shipment at 56 cents f. o. b. of $1,800 in full for the personal prop- Cars to be loaded as fast as threshed erty enumerated above, and stating and sacked,” it was held that the sellthat the estimated quantities are not er was properly not allowed to show guaranteed to be accurate, but the that it was in the minds of the pararticles are sold for the sum named, ties when the agreement was made “be the quantities more or less than that the defendant was contracting to estimated.” The plaintiff brought sell and the plaintiff to pay for only this action to recover back a portion such oats as the defendant harvested, of the purchase money, upon the and that, if the true construction of ground that the quantities had fallen the contract was that the defendant short from 30 to 40 per cent, and was required to deliver the oats offered evidence intended to show that whether produced on his own farm or the land would not produce the quan

not, then it was made and based upon tity contained in the estimates. The mutual mistake of the parties. trial court refused to permit the plain- For the admissibility of parol evitiff to go to the jury on the question

dence as to amount of commodity of fraud or mistake, and ordered judg- specified in written contract of sale, ment of nonsuit against him. This

see the annotation in 8 A.L.R. 747. judgment was affirmed on appeal, Mistake in reducing contract to writwhere the court said, inter alia: “In ing. considering the question of mistake,

In HAZARD V. WARNER (reported it is material to bear in mind that the herewith) ante, 381, it will be seen vendor does not stand upon an execu- that the purchaser of hay on a tract tory contract, seeking to recover dam- of land made two contracts in writing, ages in a court of law for nonperform- each for one half of the hay, each ance, or asking the aid of a court of

reading “250 about tons

1st equity to enforce specific execution.

and 2nd cutting." The hay actually The purchase money has been paid

amounted to 557 tons. It is held that and the property has been delivered the contracts should be reformed acby the vendor, and accepted and re- cording to the oral agreements which tained by the vendee. The contract

preceded them, so that they would be has been completely executed, and the contracts for all the 1st and 2d cutvendee is now asking to recover back tings. (It may be said that one half a portion of the purchase money, up- of the hay belonged to Pigott and that on the ground of a mutual mistake in the other half of it belonged to Hazthe estimate of the quantities. And ard and Purnell, and that the rights he asks this although the evidence of the owners of the hay were assigned given by him shows that he did not to Hazard, the plaintiff.) contract upon the basis of the defend- In Littlefield v. Clayton Bros. (1917) ant's estimate, but upon one of his Tex. Civ. App. —, 194 S. W. 194, own, more favorable to his interest; where the jury found that the parties, and shows further that it was part of by mutual mistake, omitted from the the express agreement of the parties written contract a part of the quanthat the quantities were not guar- tity contracted for, the contract was anteed to be accurate,' and that the corrected in effect. articles were finally sold for the sum In Upson Nut Co. v. American Shipof $1,800 (being less than the sum building Co. (1918) 251 Fed. 707, claimed by the vendor in his esti- where the plaintiff sued the defendant mate), 'be the quantities more or less for failure to deliver a part of 8,200 than estimated.''

tons of steel scrap bought of it by the It may be noted in this connection plaintiff, the court reformed the conthat in Barnes v. Early-Foster Co. tract in accordance with the request (1921) – Tex. Civ. App. —, 228 S. W. of the defendant upon evidence, largely in writing, that the actual agree- parties, and asked that the contract ment made with the plaintiff was one be reformed in this respect, but this for a sale of its then-present accumu- defense failed at the trial. The court lation of steel scrap at its Cleveland said, inter alia : “The contention of yards, approximating 4,200 gross tons, the learned counsel for the defendant and a like sale of its present accu- now is that such a limitation was mulation of similar material at its necessarily imported into the contract, Lorain yards, approximating 4,000 and it should be construed as containgross tons, and that, after this agree- ing it. We think that the contention ment had been made by the parties, cannot be sustained. ... But we plaintiff's bookkeeper, acting as a do not mean to assert that the plaintiff scrivener, in preparing the two writ- had the right, under the contract, to ten contracts sued on, through inad- order goods to any amount. Both parvertence or mistake, failed to embody ties in such a contract are bound to correctly therein the terms of the ac- carry it out in a reasonable way." tual contract, but, instead, through Mistakes of inadvertence or negligence. mistake or inadvertence, framed the A party cannot escape from a concontracts so as to make them a sale of

tract of sale because, through inad4,200 gross tons of steel scrap from

vertence or negligence, he has made a the accumulation on hand at the mistake therein in quantity. Cleveland yards, and 4,000 gross tons Alabama. Shrimpton & Son v. from the accumulation on hand at the Brice (1893) 102 Ala. 655, 15 So. 452. Lorain yards.

Iowa.-Wilson v. Wyoming Cattle & Where the plaintiff sued to enjoin Invest. Co. (1905) 129 Iowa, 16, 105 N. the defendant from cutting and re- W. 338. moving trees and timber, it was held Kansas.-Cargill Commission Co. v. that an answer was proper which Mowery (1916) 99 Kan. 389, 161 Pac. stated that there was an agreement 634, 162 Pac. 313. authorizing the cutting and removing Kentucky.--Bevins v. Coates & Sons of all certain timber, but, by inad- (1906) 29 Ky. L. Rep. 978, 96 S. W. vertence and mutual mistake of the 585. parties, and a mistake or misunder- Mississippi.-Coats v. Bacon (1899) standing on the part of the scrivener,

77 Miss. 320, 27 So. 621. the agreement specified only part of New Jersey.-Carnegie Steel Co. v. the timber bought. Doell v. Schrier Connelly (1916) 89 N. Y. L. 1, 97 Atl. (1905) 36 Ind. App. 253, 75 N. E. 600. 774.

Reference may be made in this con- Pennsylvania.-Ebstein V. Philanection to New York Cent, Iron Works delphia Knitting Mills Co. (1911) 48 Co. v. United States Radiator Co. Pa. Super. Ct. 349. (1903) 174 N. Y. 331, 66 N. E. 967, South Carolina.—Coates & Sons v. where the defendant contracted to fur- Early (1896) 46 S. C. 220, 24 S. E. 305. nish the plaintiff "with their entire Texas.-Shrimpton Mfg. Co. v. Brin radiator needs for the year 1899," and (1910) 59 Tex. Civ. App. 352, 125 S. the defense was that the defendant W. 942. filled all orders from the plaintiff un- Wisconsin.-J. A. Coates & Sons v. til 48,000 feet of radiation had been Buck (1896) 93 Wis. 128, 67 N. W. 23. delivered, which was as much as the In Wilson v. Wyoming Cattle & plaintiff had ever required before, but Invest. Co. (Iowa) supra, A transthat the plaintiff continued to send in ferred 10 shares of bank stock and orders that would bring the total for certain money to B, B giving her in exthe year up to 100,000 feet. The de

change a house and lot, and B transfendant claimed that there was a mu- ferring the bank stock to C in extual mistake in framing the contract, change for 10 shares of stock in an since the intention was to limit the investment company. Two years later quantity of goods to an amount such B called on the investment company as had been called for in previous to inquire about dividends, and C, years of similar dealing between the alleging that this was the first time that his attention had been called to there was a mistake in the order, it, claimed that he had, by mistake, and that the plaintiff should cancel assigned 10 shares of the investment it. This the plaintiff refused to do, company stock to B, whereas he in- having cut the

the bars to special tended to transfer only 5 shares, the lengths in compliance with the deinvestment company shares being $200 fendant's request, and the action was each and the bank stock being $100 brought for the contract price. The each, and the investment company defense was that the defendant in thereupon refused to transfer on its fact had ordered only 10 tons; that books to B more than 5 shares. his order had been misunderstood Whereupon B brought the

the action over the telephone; and that his letter against the said company and others of confirmation was written under a to compel the transfer to her of the 10 mistake of fact as to what the order shares of the investment company

really was. The jury found in favor stock, and recovered in the trial court. of the defendant, except as to the On appeal the judgment was affirmed. bars accepted by him. But the court The appellate court, while convinced set aside the verdict, saying in part: that C had made a mistake in transfer- "Having declared the provisions of ring 10 shares instead of 5, held that this contract, and thus induced the that could not avail him unless it ap- plaintiff to perform it according to peared that the mistake was shared the terms exhibited in this letter, the by the plaintiff, or that she knew of it defendant cannot thereafter set up in on receiving the stock; and it declined a court of justice, as a defense to his to interfere with the finding of the breach of it, that the letter was writtrial court that the plaintiff did not

ten under a mistaken understanding share in C's mistake.

of what the real contract was, or that When the seller, in a contract by

it contained statements which he had telegram, involving a sale of grain, by not intended to make. The law will mistake uses a code word indicating

not permit the introduction of evia greater amount than he intended,

dence by the defendant to show that and, before the knowledge of such

information given by him to the plainmistake comes to the buyer, the buyer

tiff, and intended as the basis of achas acted upon the contract, such

tion by the latter, and which has in contract is binding according to the

fact been acted upon in conformity

thereto, was unintentionally untrue, terms actually used by the parties;

where the object is to throw a loss upbut the seller is entitled to show, if

on the plaintiff, who has changed his he can, that the buyer knew that it position, relying on the truth of such would be impossible to ship within

statement." the time limited the quantity of grain A mistake as to quantity will not indicated by the code word used.

be relieved against if it is the result Cargill Commission Co. v. Mowery of the party's own negligence. Eb(Kan.) supra.

stein v. Philadelphia Knitting Mills In Carnegie Steel Co. v. Connelly Co. (Pa.) supra, where, however, the (N. J.) supra, the defendant ordered judgment was reversed on another from the plaintiff over the telephone ground. steel bars in various items, and, at So, it is no ground for relief that a the plaintiff's request, confirmed the party orders more pins and needles order by letter specifying the number than he means to. Shrimpton & Son of pieces and respective lengths, v. Brice (1893) 102 Ala. 655, 15 So. which specification made up a total 452; Bevins v. Coates & Sons (1906) of approximately 50 tons of the bars. 29 Ky. L. Rep. 978, 96 S. W. 585; After about 10 tons had been re- Coats v. Bacon (1899) 77 Miss. 320, 27 ceived, the defendant telephoned the So. 621; Coates & Sons v. Early (1896) plaintiff that he had received all 46 S. C. 220, 24 S. E. 305; Shrimpton tiat he then needed, and that, if any Mfg. Co. v. Brin (1910) 59 Tex. Civ. more were intended to be shipped, App. 352, 125 S. W. 942; J. A. Coates & Sons v. Buck (1896) 93 Wis. 128, 67 ceived and paid for about 2,053 tons, N. W. 28.

but declined to receive about 1351 tons It is useless to claim in such a case manufactured in February. While it that the minds of the parties never was held that the defendant was met. Coats v. Bacon (1899) 77 Miss. bound to take and pay for all the oil 320, 27 So. 621, and Shrimpton Mfg. cake made by plaintiffs for the time Co. v. Brin (1910) 59 Tex. Civ. App. agreed upon, in the absence of proof 352, 125 S. W. 942, supra.

that the power of their mill was unMistakes of ignorance.

duly urged, and that the quantities So, a party cannot escape from a

specified were merely expressive of contract of sale because, through ig- expectation or conjecture, and not norance, he has misunderstood the controlling, the court took occasion to description of the quantity.

state that, if the difference between In Law Reporting Co. v. Whitaker

the real and represented quantity in (1923) — Mo. App. —, 254 S. W. 715, such case were very great, it would which was an action founded upon a

show a mistake which it would be the contract to furnish a copy of the of

duty of a court of equity to correct. ficial reports of the proceedings be

In Singer v. Grand Rapids Match fore the Federal Electric Ralways

Co. (1902) 117 Ga. 86, 43 S. E. 755, it Commission, there was a dispute as to

was held that "if, by reason of amthe meaning of the word “folio" and

biguity in the terms of the contract, as to the meaning of the word "re- or some peculiar circumstances atports," and it was held that “the con

tending the transaction, it appears tract must be construed and enforced

that one of the parties has, without according to the true meaning of the gross fault or laches on his part, made language used, and may not be ad

a mistake, that this mistake was judged ineffectual because one of the

known or ought to have been known parties to the contract meant or under

to the opposite party, and that the misstood the language in a sense different

take can be relieved against without from its true meaning."

injustice, the court will afford relief, See also Law Reporting Co. v. Texas

either by refusing to decree specific Grain & Elevator Co. (1914) Tex. performance, by cancelation, or by reCiv. App. —, 168 S. W. 1001, where

fusing to give damages." the defendants thought that the term

In Hasty v. Hampton Stave Co. "folio" meant a small pamphlet, but

(1906) 80 Ark. 405, 97 S. W. 675, where that did not avail them.

the contract was one of a sale of Miscellaneous.

staves, the court said: “The contract It will be seen that in ALLEN V.

before us provides for a count of the BISSINGER & Co. (reported herewith)

staves at the place of delivery, but it ante, 376, it is held that the defend- does not stipulate that the count shall ant, who had ordered from the plain- be final, regardless of mistakes. It tiff a copy of the reports of certain seems clear to us that, before a party hearings before the Interstate Com- to such transaction can be barred from merce Commission, could not avoid claiming a correction of mistake, it liability for the price because the ex- must be so expressly stipulated in the tent of the hearings and the price ex- contract; otherwise the contracting ceeded his expectations.

parties will not be deemed to have It may be noted that in Kellogg v. bound themselves to that extent. It is Norman (1878) 74 N. Y. 596, where an elementary principle that if the the plaintiffs contracted to sell to the parties to a contract for the sale of defendant about 2,000 tons of oil cake, chattels consummate the sale under a about 350 tons per month from Sep- mutual mistake as to the quantity detember, 1875, to February, 1876, both livered, either party, on discovery of inclusive, being all the oil cake made the mistake, has the right to a correcat their mill, etc., the defendant re- tion.”

B. B. B.

(863 U. 8. 282, 68 L. ed. -, Adv. Ops. p. 119, 4l Sup. Ct. Rep. 108.)



United States Supreme Court - November 19, 1923.

(263 U. S. 282, 68 L. ed. , Adv. Ops. p. 119, 44 Sup. Ct. Rep. 108.) Banks - constitutional right requiring deposits to be turned over to

state. 1. No right of a state bank under the Federal Constitution is infringed by the state requiring it to turn over to it deposits which have remained unclaimed for a long period of time, and it is immaterial whether the state will receive the money merely as depository or take it as an escheat.

[See note on this question beginning on page 398.] - jurisdiction of state over deposits. all other claimants; and the fact that

2. The liability of a state bank do- the proceeding may be defeated by aping business in the state for unclaimed pearance of a claimant does not estabdeposits is intangible property with- lish want of seizure. in the state, over which the state has Banks -- procedure to compel turning the same dominion as it has over

over of deposits character. tangible property.

7. There is no constitutional objecright to retain money not called tion to considering a proceeding by for.

the state to compel a bank to turn 3. The contract of deposit does not over to it unclaimed deposits as in give the banks a tontine right to re- personam so far as concerns the bank, tain the money in the event that it is as quasi in rem so far as concerns denot called for by the depositor.

positors, and as strictly in rem so far Writ and process

service action as concerns other claimants. in personam proceeding by state Writ and process - published service to reach bank deposit.

reasonableness. 4. A proceeding by the state to have 8. That no affidavit of impossibility a bank turn over to it deposits which or impracticability of personal servhave remained unclaimed for a long ice on claimants is required before period of time is not one in personam, publication of notice of a proceeding so far as it concerns the depositor, by the state to compel a bank to turn within the rule governing service of over to it unclaimed deposits does not process in actions in personam.

render the provision for service of Escheat of bank deposits pro

notice unreasonable where it applies cedure.

only in case the deposit has been dor5. Whether a proceeding by the

mant for more than twenty years, and state to compel a bank to turn over to the depositor is not known to the bank it deposits which have remained un- officers to be alive. claimed for a long period of time is Constitutional law – due process quasi in rem, or strictly in rem, the publication of notice locality. essentials of jurisdiction over the de- 9. That notice to the claimants of posit are that there be a seizure of

a dormant bank deposit, which the the res at the commencement of the

state is seeking to compel the bank to suit, and reasonable notice and oppor- . turn over to it, is required to be made tunity to be heard.

in the county containing the state - sufficiency of seizure of deposit. capital rather than in that wherein

6. Sufficient seizure of the res and the bank is located, is not so unreanotice to claimants to protect the sonable that it will fail to constitute bank in a proceeding by the state due process of law, where the bank to compel unclaimed deposits to be has been required to publish in the turned over to it are effected by pro- local paper a statement of the facts viding for personal service of notice relating to the account each year for on the bank and publication of sum- nine years prior to the time fixed for mons to depositors, and of notice to state proceedings.

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