Downey v. McGinn

1 N.Y. City Ct. Rep. 478

• Court: New York Marine Court
• Decided: June 15, 1882
• Status: Published

Opinion

McAdam, J.

The receipt signed “February 19, 1877. Received payment in full. John Hogan,” is conclusive as to the item of $368, which constitutes the difference between $1.10 and $1.12 per foot for 18,153 feet of bridge stone. Maginn claimed that he had agreed to pay only $1.10 and Hogan claimed $1.12. The account was to this extent disputed, and the parties had the right to adjust it in the way they did. (Cook v. Knapp, 8 N. Y. 402 ; Palmenton v. Hoxford, 4 Den. 166 ; Pierce v. Pierce, 25 Barb, 243 ; Neary v. Bostwick, 2 Hill. 514 ; and 1 Den. 257 ; 14 Wend. 116 ; 46 N. Y. 640 ; 10 Id. 445). But the error of addition presents a different question. The bill calls for 18,153 feet of bridge stone at $1.12, and the gross amount is figured out at $20,251.38. It really figures out . . . . . . . $20,331.36

Deducting the figures on the bill . . 20,251.36

Leaves an error in plaintiff’s favor of $80.00

This discrepancy appears on the face of the bill. Assuming, as I must, that both parties acted upon the assumption that the computation and figures were correct, a mutual error of fact is established as to the $80 aforesaid, in respect to which the receipt is not conclusive (See Williams v. Carrington, 1 Hilt. 515). The principle is founded in the rule, that if parties believing that a certain state of facts exists, come to an agreement with such belief for its basis, on discovering their mutual error, they are remitted to their original rights (4 Ind. 43 ; 40 N. Y. 391 ; 4 Bosw. 337 ; 7 Mich. 325). The motion to dismiss the complaint will be denied, and the action allowed to proceed as the $80 only.