Burgoyne v. Middleton

4 Cal. 65

• Court: California Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

Mr. Justice Heydeneeldt

delivered the opinion of the Court.

Mr. Ch, J. Murray concurred.

When the bill of particulars was made out by the defendants and delivered to the plaintiffs, and the purchase money, or a portion of it, was' paid, it was an executed contract, and the defendants were bound by it, and cannot be permitted to set up a mistake as to the quantity sold. Auctioneers who sell abalance without specifying quantity, have a reasonable time to ascertain it, and this being done and acquiesced in by the purchaser, it would be a dangerous rule to permit them to avoid their own deliberate act. Until an account is rendered of the quantity, the purchaser is completely within their power; and this power would be continued, if afterwards they were allowed to allege a mistake. If they chose to act in bad faith, they might take advantage of a rising or falling market, and increase or diminish the quantity accordingly. Besides this reason, the purchaser, after receiving the bill which is rendered, is presumed to. act with reference to it, and to enter [67] *Into other contracts, relying upon the faith of it.

Where a mistake occasions loss, it must be suffered by him who makes it.

The Court, therefore, erred in directing a verdict for the defendants.

The judgment is reversed, and the cause remanded.