Bedell v. Wilder
| Decision Date | 22 April 1893 |
| Parties | W.H. BEDELL v. ARTHUR WILDER |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Assumpsit. Plea, the general issue. Heard at the December term, 1891, Caledonia county, START, J., presiding, upon the report of a referee and exceptions of the plaintiff thereto. The court overruled the exceptions and gave judgment for the plaintiff in the sum of $ 148.50 and interest. The defendant excepts.
Judgment affirmed.
W.P Stafford for the defendant.
When the lease in question was executed by the defendant, and when the plaintiff took the assignment of it the parties to both instruments understood that the water power which was the subject of the lease could be used in manufacturing pulp. With this understanding, the lease and assignment were made, and without it, it is apparent that no lease nor assignment would have been executed. The water could not be used for such purpose. Clement v. Gould, 61 Vt. 573, 18 A. 453. The lease was made and assigned in ignorance of this fact; an instance of a mistake as to the subject matter of the thing contracted for, a common mistake as to the rights conveyed by the lease. It is clear that the defendant supposed he was selling and the plaintiff that he was buying a right to water which could be used in making pulp. The plaintiff secured by the contracts no such rights, for the defendant had none to convey. It is analogous in principle to those cases of sale in which the subject of the sale has ceased to exist, and the parties are ignorant of the fact, like the destruction of a building by fire before the sale, or the death of an animal, or the sale of an annuity when the annuitant is dead. An error of fact takes place when some fact is supposed to exist which does not exist. The parties in entering into the contracts in question, supposed the water could be used by them in making pulp; it could not be so used. Clearly an error of fact. In respect of such a state of facts the law is this: If an agreement is induced by a mistake common to both parties, without which mistake the agreement would not have been made, and the mistake was in respect of the subject matter of the contract, the agreement is inoperative and void. Such was the civil law. Domat's Civil Law, Pt. 1, Book 1, Title XVIII, s. 1, Art VII. The same rule has been adopted as a part of the common law, and is based upon the idea that in such cases no contract has been consummated, that the minds of the parties have never met in respect of the real subject matter of the contract. It is not a case of a mere failure of consideration, for that implies the existence of a contract, while a mutual mistake prevents the existence of one.
The law in this state in such cases was announced in Ketchum v Catlin, 21 Vt. 191. The defendant sold produce which both parties supposed was in Whitehall; in fact it was in Boston. By reason of this mutual mistake, the plaintiff was permitted to recover what he had paid defendant on account of it, and that vigorous master of the common law, the late Bennett, J., says, ...
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