Harvey v. Harris

Morton, J. The evidence at the trial tended to show the following facts: The defendants offered for sale at auction a quantity of damaged flour. It was divided into two classes: one, being but slightly damaged, was offered for sale in the original packages or barrels, and was to be sold by the barrel; the other, being more damaged, had been repacked, and was offered as repacked flour or “ dough,” and was to be sold by the pound. The flour was arranged in tiers or lots numbered from 1 to 16, a space of about ten feet being left between the flour to be sold by the barrel and the “ dough,” and was not in the room where the sale took place. After the auctioneers had sold the first eight tiers by the barrel, they stated to the company present that they now-offered for sale the repacked flour, taken out of some 1500 barrels, and that, owing to inequality of weights, they should sell it by the pound, with the privilege to the buyer of taking any number of the remaining tiers. The plaintiff was the highest bidder, and being asked what he would take under his bid, said he would take the two tiers numbered 9 and 10. The defendants then proceeded and sold the remaining tiers to other buyers. Immediately after the sale, it was discovered that tiers numbered 9 and 10 did not consist of “ repacked flour,” but of flour in the original pack [37] ages, which had been placed next to tier No. 8 by the defendants’ teamster, without the knowledge of the defendants or of the owner The learned judge who presided at the trial instructed the jury that if the sale by the defendants was a sale of “ damaged flour,” and if the flour offered and struck off to the plaintiff came under or within that general description, it passed to him by the sale ; that if the defendants supposed the article to be dough, and yet offered it for sale under such a name as described this particular article in question, the plaintiff was entitled to recover, unless he knew that the defendants were laboring under this mistake. We are of opinion that this instruction was erroneous. To constitute a contract of sale, there must be an agreement by the vendor that the specific articles shall pass to and become the property of the vendee. It is true, that if there is a mutual agreement of the parties for the sale of particular articles of property, a mistake or misapprehension as to the quality of the articles will not enable the vendor to repudiate the sale. Gardner v. Lane, 9 Allen, 492. The case at bar falls near the line, but we think it is within the class of cases where there is not a meeting of the minds of the parties as to the subject matter of the sale. The article which the defendants offered to sell to the plaintiff was “repacked flour” or “ dough; ” the article which the plaintiff claims is flour in the “ original packages.” If two tiers of barrels of sugar had by mistake been placed with the flour, and numbered 9 and 10, it would hardly be contended that the defendants were obliged to deliver or the plaintiff to accept the sugar. The principle is the same, though the two tiers consisted of barrels containing flour, or “ damaged flour.” The defendants, with the knowledge of the bidders, divided the damaged flour into two classes, identified by different marks. They agreed to sell to the plaintiff flour of the second class. The plaintiff claims flour of the first class. It seems to us that there was a mistake as to the identity of the article sold, and not merely as to its quality, and that it is a case within that class where, through mistake, a contract which the parties intended to make fails of effect because they did not in fact agree as to the subject matter. Exceptions sustained.