JAMES BURGOYNE and DAVID K. S. BURCH, Appellants, v. JOHN MIDDLETON and EDWARD H. CLAGHORN, Respondents

JAMES BURGOYNE and DAVID K. S. BURCH, Appellants, v. JOHN MIDDLETON and EDWARD H. CLAGHORN, Respondents. Auchoneee, Sale by. — When an .auctioneer sells a balance of goods, without specifying their quantity, he has a reasonable time to ascertain it; when this is done, and a bill of particulars is made out and delivered to the purchaser, who pays the purchase money, or a portion oí it, the contract becomes executed, and the auctioneers will not afterwards be permitted to allege a mistake as to the quantity. Appeal from the Superior Court of the City of San Erancisco. This action was brought by Burgoyne & Co. against Middleton & Claghorn, auctioneers for Fernandez & Peyton, t<r recover from them the sum of $1,500 damages, by reason of the non-delivery to them of 153 bags of coffee, purchased by them on the 24th day of August, 1853, as per bill of parcels furnished by defendants’ clerk on the same day to plaintiffs. On the day of sale, plaintiffs paid $500, and on the 26th day of August tendered the balance of the purchase money, and demanded the 153 bags of coffee, which was refused by the defendants, they alleging that the purchase by the plaintiffs was of the residue of the invoice sold (and was so represented at the .sale) supposed to contain 200 bags, more or less; that the real quantity *remaining was 53 bags; that a mistake had been made at the sale in representing the lot as containing 200 bags, more or less, and afterwards by defendants’ clerk in making out the bill of parcels for 153. On the trial the plaintiff gave in evidence the bill of parcels and other evidence tending to maintain the issue on their part, and among other things, an advance in the price of coffee, shortly after the sale. The defendants, on their part, offered evidence to show that the sale was of no specific quantity; that there was a mistake in the representation at the sale and in making out the bill of parcels, to the admission of which by the Court, the plaintiffs excepted as tending to álter and vary the bill of parcels, the written contract of sale. The Judge charged the jury as follows: “ It is claimed by the plaintiffs that the bill of parcels was the contract of sale. I charge you it is not and was not not. The plaintiffs cannot recover in this action unless you believe that the defendants, at the time of the sale, offered and intended to sell 153 sacks.” The jury, under the charge of the Court as above given, retired, and afterwards returned into Court and stated their inability to agree, whereupon, on motion of defendants’ counsel, the Court directed the jury that they should find a verdict for defendants, and a verdict was accordingly rendered for the defendants, and so recorded by the Clerk. The plaintiffs excepted to this direction of the Court. Burritt & Gorham, for Appellants. 1st. The Court erred in admitting parol testimony to vary, alter and contradict the bill of parcels made out by the defendants’ clerk. (Chitty on Contracts, p. 400, and notes.) Also, in admitting testimony to contradict the entry in the sales book to the effect that plaintiff had purchassd 153 bags coffee. (2 Maul. & Sel. 286; 11 Mass. 6; 5 Harr. & J. 117; 6 lb. 249; 9 Met. 83, 87.) 2d. The Court erred in refusing the instructions prayed for. 3d. The Court erred in charging the jury that the bill of parcels did not constitute the contract, and that the plaintiff * could not recover; also, in directing the jury to find a verdict for the defendants, after they had stated that they could not agree. Wells, Haight & Gary, for Bespondent. The sale was void as to any more than 53 bags, on the ground of mistake, as that was the whole balance. ( Story on Contracts, § 419, 420; Lyon v. Flint, Peabody <& Go., decided by this Court at this term.) 2d. Defendants are not personally liable, as they, were merely auctioneers, agents for others, and disclosed their agency. (Story on Agency, § 268, 267, 107, 108; Smith’s Mercantile Law, 144; 20 Wend. 431.) 3d. A plain and palpable mistake or ignorance of facts may be shown, to avoid a contract, and even to recover money paid. (Story on Contracts, § 409, 410; Story on Sales, § 145; 1 Story on Eq. Jur. § 140; 11 Pet, 63; 43 Eng. Com. Law Eep. 16; 1 Wend. 355; 20 lb. 174; 2 Eng. Ex. 55; 2 Cush. 81; 9 Pick. Ill; 10 Eng. Com. Law Eep. 199.) [MAJORITY — Mr. Justice Heydeneeldt] 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 *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.