Mix v. White

52 Vt. 284

• Court: Supreme Court of Vermont
• Decided: January 15, 1880
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

The note as delivered was in common form for $200. Defendant claimed, and the referee received evidence to show, and he has found, that, by mistake, it was written for $100 too much. It was written by defendant’s daughter as his scrivener, in his presence, and it was delivered on his receiving whatever sum of money he borrowed of the payee. It is to be regarded the same as if it had been written by the defendant himself, so far as the question as to showing the alleged mistake is concerned. That evidence was received under objection and exception. Was it permissible to receive it ? The common money counts being as proper as a special count for recovering upon the note, the question stands for the same consideration as if it had been specially declared upon. In either case the note would be evidence of a contract in writing to pay, for value received, the sum of $200.

This is not a case involving the subject of no consideration or a failure of consideration, as understood in the law. The doctrine of that subject is not predicable of mistake in the terms of the contract by which it expresses more to be paid than was in fact agreed, but only when the contract is drawn according to the agreement and the consideration for such agreement fails to answer what the promising party understood and had a right to understand it to be. This being so, it is only needful to determine whether the evidence to show the alleged mistake was properly received. In McDuffie v. Magoon, 26 Vt. 618, the defendant offered to show in defence by parol that certain notes upon the amount of which depended the defendant’s liability to pay the note in suit, were, by mistake in casting interest, made too large. In the opinion by Redfield, C. J., it is said: “ Such evidence is not competent to show that by mistake the notes were originally made too large. Such evidence no more shows a failure or want of consideration than, when a note is given for one sum, as the price of a chattel sold, it makes out such a result, by proving that the price was in fact agreed to be less. The evidence in both cases shows the contract to be different from that expressed in the note. . . It has. been'repeatedly decided by this court that such evidence is not competent to defeat a note at law.” The question was explicitly decided in Bradley v. Anderson, 5 Vt. 152, where the alleged mistake was in the note sued upon. This was but an application of the principle of the decision in Downs v. Webster, Brayt. 79. The same was held in Fitzhugh v. Runyon, 8 Johns. 375.

The question of fraud in procuring the note as it was when delivered, is not involved in this case.

No point is made, nor book cited, by defendant’s counsel, to show that such evidence was admissible as to mistake.

Judgment affirmed.