Westinghouse, Church, Kerr & Co. v. Remington Salt Co.

116 A.D. 123, 101 N.Y.S. 303, 1906 N.Y. App. Div. LEXIS 2616

Opinions

Cochrane, J.:

The parties clearly and.unequivocally stated in .their contract that “ by rice anthracite coal is meant that which will pass through a finch mesh and over a 3/16th inch mesh.” There could be no mistake as to the size of the coal which they intended to describe. They expressly stated their meaning. And it was on coal of this particular size that the guaranty in question was based. It appears uncontroverted from the evidence that the'size of the coal is a material element in the successful operation of these stokers. Eon constat, the plaintiff would not have made such a guaranty based on coal of a different __ size. The mistake complained of does not consist in the erroneous formulation of the contract, but in the erroneous assumption by both parties that the rice anthracite coal supplied by the Lehigh Valley Coal Company in Ithaca and vicinity ,answered the description stated in the contract. This perhaps may more appropriately be characterized as mutual ignorance rather than as a mutual mistake. The defendant with considerable circumlocution states in its counterclaim the clause which it wishes to have substituted bodily in the place of the clause in the contract above quoted and to have ■ the latter clause absolutely eliminated. But to reduce to its simplest terms the proposed substitution of the defendant it means that the description of the size of the meshes shall be changed so that eleven-thirty-seconds shall be substituted for three-eighths and two-sixteenths for- three-sixteenths, thereby making said clause to read as follows : “ By rice anthracite coal is meant that which will. pass through an 11/32" mesh and over a 2/16" mesh.” This would make the plaintiff’s guaranty relate to coal of a different size from that which constituted the basis of the guaranty which it in fact made. Neither the plaintiff nor the defendant intended ■ that the guaranty should rest on coal of any size except that which they expressly stated in the contract. The plaintiff in good faith has performed the contract which it made. The defendant, after wait■irig until full performance -by the plaintiff, now seeks to change the contract of guaranty in its very essence, the effect of which change will be to give the defendant a cause of action agaipst the' plaintiff for a breach of guaranty based on cqal answering a description absolutely inconsistent with a description thereof on which the guaranty was based. If the contract had not been executed it may be that in equity it should be reformed or rescinded. But the parties are not now in the satire position. -Reformation cannot now be effected without imposing on plaintiff a much greater liability than if defendant had promptly asked for redress. It is unfortunate for the defendant that the parties were mutually ignorant of the size of the coal furnished in the vicinity of Ithaca. But the defendant was derelict in not ascertaining that fact when the contract was made and should not now cast the burden of such dereliction on the plaintiff which is no more at fault than the defendant. The proposed reformation would simply transfer this misfortune from the defendant to the-plaintiff. The reformation of a contract must proceed on principles of equity, and it would not be equitable or just after the plaintiff has performed its contract in good faith to cast on it a burden which it never intended to assume and which might have been obviated had defendant asked for reformation before performance. Under such circumstances equity requires that the defendant should bear the consequences of its own mistake. The trial court, therefore, properly declined to reform the contract. ' "

The verdict in favor of the- defendant was properly set aside by the trial justice because of erroneous instructions to the jury concerning the measure of damages. _ The court charged: “ If there was a breach of the contract the plaintiff would not be entitled to recover anything,” and again. at the request of defendant’s éounsel"that if the jury “ find from the evidence that the stokers were worthless for the purpose for which they were furnished, by reason of the fact that they would not'burn bituminous coal without smoke, then the defendant is entitled to recover back the purchase price with the special damage sustained by the defendant as shown by the evidence.” The plaintiff excepted to those- portions of the charge. Under this charge the jury were required to award the defendant a verdict for all of the special' damages sustained xby it, and in addition thereto for all of the purchase price, provided only the stokers were worthless for the particular purpose for which they were furnished because of not burning bituminous coal without smoke and regardless of their value in the open market. It is clear that they might be worthless for the defendant’s purposes and still have much value in the market generally, but the jury under the charge excepted to was not permitted to take into consideration this latter feature of the case. The rule of damages as given to the jury was- widely divergent from the correct rule and clearly misleading.

The interlocutory judgment should be affirmed, without costs, and the order setting aside the verdict should be affirmed, with costs.

All concurred, except Kellogg, J., - dissenting in opinion as to affirmance of the interlocutory judgment; Parkek, P. J., not voting'