Independent Trading Co. v. E. Fougera & Co.

Headnote

Contract — action to recover for breach of contract in failing to deliver goods sold — defense of mutual mistake in quality of goods ordered.

Independent Trading Co., Inc., v. Fougera & Co , Inc., 192 App. Div. 686 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1920, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived. The complaint was upon a breach of two contracts for the delivery of a specified amount of “ Potassium Guaiacol Sulphonate, C. P. White; ” one is dated July 18, 1917, for 100 pounds, the second July 19, 1917, for 50 pounds. In each the drug is similarly described. The damage claimed was for failure to deliver. The answer alleged in substance that the goods quoted by the defendant were a commercial

product known as potassium guaiacol sulphonate, that a sample was submitted upon receipt of the orders and that upon 'ts rejection defendant canceled the orders, and that the word “ white ” inserted by the plaintiff in each of the contracts was fraudulently so inserted with the design to deceive the defendant as to the quality of material ordered; and prayed that the contracts be reformed by striking out the word “ white ” in order to express the true intention of the parties. At the trial defendant withdrew its claim of fraud and demand for the reformation of the contracts, and it was stipulated that the sole question before the court was defendant’s claim of “ mutual mistake as to the identity of the article in suit.”