Haubert v. Mausshardt

Citations

• 89 Cal. 433
• 26 P. 899
• 1891 Cal. LEXIS 832

Syllabus

<p>Sale — Price — Contract Signed in Duplicate — Mistake in Vendee’s Copy — Assignment by Vendee — Liability of Vendee for. Loss. — Where a vendor sells a quantity of wine at a stipulated price per gallon, and the vendee causes a contract to be written, which is executed in duplicate, the vendor signing both copies upon the assurance of the vendee that the two were exactly alike, but by mistake a less price was inserted in one of the copies, which was taken by the vendee and after-wards assigned by him to a third party, the vendee is liable to the vendor for the loss resulting from the mistake, and the fact that the vendor signed both copies of the contract does not make him responsible therefor.</p> <p>Id.—Vendor’s Knowledge of Assignment—Part Payment by Assignee —■ Novation — Release of Vendee. — The fact that the vendor knew of the assignment of the contract, and afterwards shipped the wine to the assignee, from whom he received part payment, does not show a novation, in the absence of evidence tending to show that he released the vendee from his obligation, or accepted his assignee in his place.</p> <p>Id. •— Proof of Novation — Presumption. — A contract of novation must be proven as other contracts are, and will not be presumed where the acts tending to show the novation are consistent with the fact that the original party to the contract is being held thereto, and it appears tha t such a course would be more advantageous to the party claiming as against the novation.</p> <p>Id. — Validity of Novation — Contract — Mutual Mistake.—A contract of novation made under a mutual mistake is invalid.</p>