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ing an inventory. He also advertised it for sale by virtue of the execution.

proof given of this second levy until after judgment on the first trial, but it was, in conversation and affidavit, denied to exist. Plaintiff's testimony showed that defendant was at the hotel where the goods were, and in conversation with the judgment-debt-show a new levy on May 28th; that

J. McGuire, for applt.
M. Goodrich, for respt.

Held, That the testimony did not

defendant's acts in taking the inventory, and advertising the furniture for sale were the following up and carrying out of the levy of May 26th, and they stand or fall with that.

Order of General Term, reversing judgment for defendant and granting

Opinion by Folger, J. All concur.

ACCORD AND SATISFAC-
TION. MISTAKE.
Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.
Reuben P. Caulkins et al., applts.,
v. Fisher W. Griswold, respt.

or, on the day and at the hour he testified he had made the second levy. It appeared that this conversation did not at all relate to a new levy, and defendant had declared that S. was satisfied with the validity of the levy of the 26th, and advised adhering to it. There was also an affidavit of de-a new trial, affirmed and judgment fendant in which he stated that since absolute for respondent on stipulation, the levy of the 26th, he had claimed with costs. to hold the property by virtue thereof, and had not since the making of it taken any further proceedings, or done anything in respect to the property or execution, except search for further property, and advertise sale. N. Defendant claimed that this affidavit was drawn by a counsel, strange and hostile to the judgment and execution, and that the matter verified by him was not fully made known to him. He testified that it was not read to him, or apprized that it contained such matter. The counsel who drew the affidavit testified that the information on which these averments were based was first orally taken from defendant, and then written down and made known to him as contained in the affidavit as fully as the reading of it could do so, and that defendant suggested an addition which was made. The attorney also stated that he had it in view to, and did inquire whether further proceedings were had under the execution. Defendant was at the hotel where the goods were after the 28th, engaged in mak

Decided June, 1877.

If the parties to an accord and satisfaction, in settling a claim, act under a mutual mistake of facts, there is nothing in the nature of the transaction which prevents a court of law from correcting such mistake, or relieving from its consequences, in a proper action for that purpose.

Appeal from a judgment entered on the report of a referee.

The action was brought to recover money had and received by the defendant, which was alleged to belong to the plaintiffs, and also for money alleged to have been paid by the plaintiffs to the defendant, by mistake. The defence set up was an accord and satisfaction. The amount claimed by the plaintiffs was over

160 dollars. The referee reported in their favor for 34 dollars and 22 cents only, and the defendant entered judgment for his costs less that

sum.

The facts found by the referee are substantially these: In 1871, plaintiffs purchased of defendant his crop of grapes, at one and one half cents per pound; the whole quantity delivered was 55,959 pounds, amounting to the sum of $839.38, and plaintiffs owed defendant ten dollars for work, making in all $849.38. Prior to 10th March, 1872, plaintiffs paid defendant, on account of said grapes, $598 in cash, and $12.50 in brandy; in all $610.50, leaving due on that day, $238.88. On that day the plaintiff, Reuben P. Caulkins, and the defendant had an accounting of the dealings between the parties, which included the balance due the defendant for his grapes. On such ac counting, neither the weight of the grapes, nor of the crates in which they were delivered, was known with accuracy by either party, nor were they able, from recollection on the memoranda then before them, to determine the weight of the grapes or the crates correctly at that time. They thereupon agreed that the whole quantity of grapes, including crates, was 65,600 pounds, and that there should be deducted therefrom 600 pounds for the weight of the crates, and that upon the basis of those items and weights, allowing the items above stated, the balance due from the plaintiffs to the defendant was $403.26. The plaintiffs thereupon paid to the defendant, and the latter accepted in full of such balance, the sum of $402. At the time

of such accounting, Caulkins claimed there should be deducted 1600 pounds for weight of crates, and the defendant claimed that only 600 pounds should be deducted on that account. The referce also found that in calculating the amount owing on the basis of said agreement, Caulkins made a mistake which neither he nor the defendant then discovered, in calling such amount $403.26; that the true and correct amount owing upon the basis of the items then agreed upon was $374.50; and that in consequence of such mistake, the payment then made exceeded the amount due, by $27.50. That before suit, the plaintiffs, claiming there was a mistake, demanded of the defendant the sum overpaid, which they claimed was about $120, but the defendant refused, alleging that there was no mistake. The referee decided, as matter of law, that the agreement of the 10th of March operated as an accord and satisfaction in respect to the several items included therein, and precluded the plaintiffs from recovering the excess paid on account of the grapes, but that the overpayment of $27.50 having occurred in consequence of the mistake which arose in determining the sum necessary to make satisfaction upon the account, the plaintiffs are entitled to recover the same, with interest. E. B. Pottle, for applts. H. M. Field, for respt.

Held, Where money is erroneously paid by one person to another, in consequence of a mutual ignorance as to facts, which, if known, would have prevented the payment, the money so paid may be recovered back.

An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.

A contract made upon an assumed state of facts, as to which there is a mutual mistake, may be rescinded, on discovering the mistake, and the party paying money upon it may recover it back. This principle applies to every form of contract, express or implied, including an account stated, and an accord and satisfaction.

Held also, That if the parties to an accord and satisfaction, in settling a claim, act under a mutual mistake of facts, there is nothing in the nature of the transaction which prevents a court of law from correct ing the mistake, or relieving from its consequences, in a proper action for that purpose.

In the present case, there is no finding of the referee inconsistent with the fact of a mutual mistake, and the evidence tends to show that there was such mutual mistake.

Held, The accord is not a bar to the correcting of a mistake by which the accord was induced. The referee very properly held the plaintiffs entitled to recover the money paid in consequence of the mistake made in computing the amount due upon the basis of the accord. He should have gone further and allowed to the plaintiffs the money paid by mistake for grapes in excess of the quantity delivered.

Judgment reversed and new trial ordered before another referee, costs to abide event.

Opinion by Smith, J.

ARREST.

N. Y. COURT OF APPEALS. The Standard Sugar Refinery, respt., v. Dayton, impl'd., &c., applt. Decided September 25, 1877.

Where one sells goods for another, the goods to be shipped directly to the purchaser, and the proceeds to be collected by the agent and paid over, he is a factor; and where he has made the sales on terms different from those authorized, and fails to pay over the moneys collected, he is liable to arrest, and cannot set up his own fraud to shield himself from such responsibility.

The principal may waive the variance in the terms, and claim the proceeds.

An order of arrest in such case can be sus

tained on the ground that the debt was fraudulently contracted. Affirming S. C., 3 W. Dig., 104.

The plaintiff employed defendant to sell sugar for it. He caused plaintiff to ship several lots of sugar to persons to whom he had made sales, and to forward the invoices and bills of lading to him, by representing that he had sold the sugar upon terms authorized by plaintiff, and he undertook to collect the proceeds of the sales, and pay them over to plaintiff. This he failed to do, and this action was brought to recover the proceeds of the sales, and plaintiff obtained an order for defendant's arrest. Defendant set up as a defense that he made the sales on different terms from those upon which he was authorized to, and represented he had made them.

Samuel Hand, for applt.
M. W. Devine, for respt.

Held, That defendant occupied as to plaintiff the position of a factor, and could not set up his own fraud to shield him from responsibility as such; that the purchasers were not bound by plaintiff's secret instructions

to defendant, and the sales and payments were valid, nor could the arrangements between the purchasers and defendant affect plaintiff's rights; it could waive the variance, and adopt the sales, and claim the pro

ceeds.

Also held, That the order of arrest can be sustained on the ground that the debt was fraudulently contracted. Order of General Term affirming order of Special Term denying motion to vacate order of arrest, affirmed.

fixtures, furniture, and utensils described in the mortgage.

On the 10th of April, Burrows was adjudged a bankrupt on his own petition. Afterwards, by agreement of Gibson and the insurance company, the property in dispute was delivered to Burrows' assignee to be sold, whatever liens said claimants had being transferred to the fund to be derived from said sale. The assignee sold the property for $1,000, subject to a mortgage held by the purchaser. Both Gibson and the insurance com

Opinion by Rapallo, J. All con- pany claim this sum; the former by

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On the 9th of March, 1876, Asa W. Burrows, a confectioner, executed a chattel mortgage on his stock in trade, fixtures, furniture, and utensils to secure to William T. Gibson the payment of certain promissory notes. On the 28th of February, 1876, the Etna Insurance Company brought suit in the Circuit Court of the United States for this district, against Burrows, to recover possession of certain premises, and for unpaid rent; and on the 25th of March, the insurance company obtained judgment for possession of the premises, and $700 for their use and occupation. On the 28th of March, an execution was is sued and placed in the hands of the marshal, and on the 30th was levied on the stock then on hand, and the

virtue of the lien of his mortgage, and the latter by virtue of the lien of its execution and levy.

There was a verbal agreement between Gibson and Burrows, that the latter should continue his business.

just as he had done before, disposing of the mortgaged property for his own benefit; this agreement extended to the stock on hand only, and not to the fixtures, furniture, utensils, or any other property described in the mortgage.

It is insisted by the insurance company that the agreement that Burrows should continue to carry on the business, buying and selling in the usual way, and using the proceeds of the stock as his own, rendered the entire mortgage void; while on the other hand, it is contended by Gibson that the agreement vitiated the mortgage so far only as the stock on hand was concerned.

Held, That such an agreement necessarily hinders and delays other creditors. It will not do for the mortgagee in this case to say that so far as the fixtures, furniture, and utensils were concerned there was no

evidence of an intent that they should be protected by the mortgage for the benefit of the mortgagor. It is enough that the object of the parties in part was to do what amounts to a fraud on other creditors. That unlawful design, confined as it was to only part of the property, was sufficient to render the mortgage void in its entire extent. Entire good faith is necessary to uphold such instruments, and it cannot be said the parties have dealt fairly, when their design, as to part of the property described in the mortgage, is to protect it in the hands of the mortgagor from levy and sale by other creditors. Russell v. Winne, 37 N. Y., 591; Thomas on Mortgages, 487.

Ordered that the fund be applied to the payment of the execution of the Ætna Insurance Company. Opinion by Gresham. J.

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people of that district.

It cannot be inferred that the provisions of a village charter in relation to excise, are intended to be affected by an amendment to the general excise law, where such village has never been under the operation of the

general law in that respect.

The Board of Trustees of the village of Gloversville takes the place of the Board of Commissioners of Excise in other villages under the general law, and is subject to the excise laws, except as modified by the charter. Chap. 444, Laws of 1874, relating to the elec

tion of excise commissioners in towns, does not affect the powers of the Board of Trustees of the village of Gloversville, and where such village board has refused a license to a party, a license from the town board is no protection to him.

This action was brought by plaintiff, by virtue of the provisions of its charter, Chap. 505, Laws of 1873, entitled "An act to reorganize the village of Gloversville," to recover penalties for the sale of intoxicating liquors within its limits. § 51 of said act provided that, at each annual election in said village, a vote should be taken to regulate the granting of license to sell or dispose of intoxicating liquors, and that unless a majority of the votes cast should be for the granting of the license, the Board of Trustees could not grant said license. The same section provides that the commissioners of excise shall have the same powers, and perform the same duties as boards of commissioners of excise, and be subject to the excise law of this State, except as modified by this act, and that all license moneys and penalties for violation of excise laws shall be paid to the village treasurer for the benefit of the village, and may be sued for and recovered in the corporate name of the village.

The judge found that between Feb. 12 and March 13, 1875, defendants sold liquors to be drank on his premises in said village thirty different times, fifteen of which were after Feb. 22, 1875. Defendants proved that from the town board of excise of the on that day they obtained a license town of J., in which town the plaintiff is situated. At the annual elections held in the village in March 1874 and 1875, a majority of the votes was cast against granting licenses.

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