Codd v. Langley, 75 Wash. 45, 134 Pac. 467; Heffron v. Fogle, 40 Wash. 698, 82 Pac. 1003; Silbon v. Pacific Brewing & Malting Co. 72 Wash. 13, 129 Pac. 581; Dennis v. Northern P. R. Co. 20 Wash. 320, 55 Pac. 210; Preston v. Hill-Wilson Shingle Co. 50 Wash. 377, 97 Pac. 293; Moore v. Parker, 83 Wash. 399, 145 Pac. 440; Bruce v. Grays Harbor Drug Co. 68 Wash. 668, 123 Pac. 1075; Hapeman v. McNeal, 48 Wash. 527, 93 Pac. 1076; Pom. Eq. Jur. 3d ed. 850.

Tolman, J., delivered the opinion of the court:

A single question of law is presented by this appeal. Three witnesses testified on behalf of the appellant to the effect that appellant and his assignors were the owners of the alfalfa hay being produced upon a certain tract of land; that respondent, a dealer in hay, approached them and proposed to buy the entire first and second cuttings, and that neither party was certain as to what, in tons, the two cuttings would amount to. The owners of the hay were willing to sell the whole thereof only, and the purchaser orally agreed to take the whole. product of the two cuttings. Thereupon the dealer prepared, signed, and procured the owners of the hay to sign contracts in the following form:

6/21, 1920.

"Mr. C. E. Pigott, "Harrah, Wash. "We offer to purchase from you at the price of $24.00 per ton 250 about tons of alf hay to be loaded by you f. o. b. cars basis Harrah, Washington, and to be shipped to points in the state designated by us, 1st and 2nd cutting, the quality is to be number one at Harrah. Off grade goods handled at shipper's account. Delivery to be made by you as follows: Delivery on or before Oct. 1st.

"F. S. Warner, by W. W. W. "I hereby accept the foregoing offer and acknowledge receipt of

on.

"C. E. Pigott." "June 22, 1920.

"Mr. Hazard and Purnell, "Harrah, Wash.

"We hereby offer to purchase from you at the price of $24.00 per ton 250 about tons of alf hay, to be loaded by you f. o. b. cars basis Harrah, Washington, and to be shipped to points in the state designated by us, 1st and 2nd cutting, the quality is to be Number One at Harrah. Off grade goods handled at shipper's account. Delivery to be made by you as follows: Delivery on or before Oct. 1st 1920.

"F. S. Warner, by W. W. W. "I hereby accept the foregoing offer and acknowledge receipt of $1500.00 as advance payment there

on.

"Dated this 22 day of June, 1920.
"J. T. Hazard.
"H. Purnell.”

These contracts were upon printed forms, and the words and figures italicized only were written in by the purchaser at the time they were executed.

Respondent's only witness, the agent who made the contract, does not in terms deny that the conversations were as testified to by appellant's witnesses, but does give his version of those conversations as follows:

A. I went over to Mr. Pigott and asked to buy his hay. He thought around about it awhile, and said he would sell. We talked there, and I said, "How many tons have you got?" He said, "Five or six hundred tons, somewhere in that neighborhood." We walked back to the corner, and I said, "I want something definite," and he said, "I will se 250 tons," and I advanced a thou sand dollars on that; and

Q. The other contract you made with Mr. Hazard and Mr. Purnell?

A. The same day, I think, we talked it over, they said they didn't know whether the price was right. I said: "It's up to you fellows to

decide. I would like to handle it, but it's up to you fellows to decide whether you want to sell." They said to come back to-morrow, so I went back the following day, and took Mr. Pigott's copy of the contract and showed it to Mr. Hazard and Mr. Purnell. It was out in the road, right in front of their place, and they came over there, and they talked a few minutes-they was rather busy stacking hay-and they talked it over a few minutes and decided to sell. They spoke about how much they had, and I said, "I don't know, I haven't been over your property. I haven't been all over your place. I don't know how much. You sign the same as Mr. Pigott," so I wrote an exact duplicate, the same as Mr. Pigott's.

Respondent accepted and paid for 500 tons only under these contracts, and it is admitted that there was produced from the first and second cuttings referred to an additional 57 tons of No. 1 alfalfa hay, delivery of which was tendered and refused. The price of hay fell, and the sellers disposed of these 57 tons at the best price obtainable, which was $7 per ton less than the price named in the contracts. The other

parties interested having assigned their claims to appellant, he brought this action seeking to have the contracts reformed so as to express the true intent of the parties, and to recover thereon the loss of $399. From a judgment denying the reformation and recovery this appeal is prosecuted.

Many authorities are cited pro and con upon the question here presented, and, while not greatly differing in principle, the application so differs as to result in hopeless confusion, and render a review of the authorities wholly valueless. The generally accepted modern rule is well stated in 23 R. C. L. at page 326, as follows: "Many well-considered modern cases show a strong tendency to adopt the position that the main object of equitable jurisdiction should be to effectuate the intentions of the parties to the in

strument in question, and that any mistake made by them which would defeat such intentions should be corrected in equity Reformationfor the purpose of for mistake of putting into effect law."

such intentions, whether the mistake in question be one of law or of fact. And this is so although the parties knew what words were employed and their ordinary meaning."

We have recently considered this question in Hendrickson v. Lyons, 121 Wash. 632, 209 Pac. 1095, where it is said:

"It is undoubtedly a general rule that equity will not grant relief against mistakes of law, but the rule, like many others, has its exceptions, and we are clear that the case here is within an exception. As was said by the Supreme Court of the United States in Hunt v. Rhodes, 1 Pet. 1, 7 L. ed. 27: 'When an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfil, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.'

"In Oliver v. Mutual Commercial M. Ins. Co. 2 Curt. C. C. 298, Fed. Cas. No. 10,498, it was said: "There is a wide distinction between a case where an instrument is what the parties agreed it should be, but its legal effect is unexpected, and a case where an instrument was designed to carry into effect an existing binding agreement, but by mistake fails to do so. In the former case the party never had a right to anything more than he has got. He may be disappointed in finding that what he acquired was less valuable than he expected, but he acquired all he bargained for, and there is no ground upon which a court of equity can give him anything more. On the contrary, in the latter case, the party had a complete right, by an ex

isting contract, to something which, by mistake, he has failed to get; and this contract, and the right under it, still subsist, in point of equity; because, though the parties attempted to execute the contract, by mistake, they failed to execute it; and therefore a court of equity interposes, and, upon the footing of an existing contract, unexecuted, proceeds to put the party in that condition to which his contract entitles him. And in this class of cases I apprehend it is wholly immaterial whether the party failed to obtain that to which he was entitled through a mistake of fact or of law.'

"Later cases from the Supreme Court of the United States maintain the same doctrine (see Walden v. Skinner, 101 U. S. 577, 25 L. ed. 963), and our own cases of Dennis v. Northern P. R. Co. 20 Wash. 320, 55 Pac. 210, State v. Lorenz, 22 Wash. 289, 60 Pac. 644, and Murray v. Sanderson, 62 Wash. 477, 114 Pac. 424, are to the same effect, although the precise question suggested was not discussed in the opinions. Indeed, it seems to be the almost universal current of authority that mistakes of this sort will be relieved from in equity, whether they be strictly mistakes of law or mistakes mixed of law and fact."

Let us apply, if we can, these principles to the facts now before

If the evidence of appellant's three witnesses is to be accepted as true, and we see no escape from that course, as it preponderates three to one, and is denied but inferentially by the one, then an oral agreement was first arrived at for the sale and purchase of the entire first and second cuttings grown by the sellers, and the writing thereafter prepared

by the purchaser did not follow and correctly state the oral agreement, unless the word "about" be considered to mean, in effect, the sellers' entire crop. If the word "about" be not so construed, then the written contracts violate the manifest intention of the parties, and the sellers are denied a right which was theirs by reason of

mistake in re

to writing

tity of sale.

the then pre-exist- Reformationing oral contract, ducing contract and which "still stating quansubsists in point of equity; because, though the parties attempted to execute the contract, by mistake, they failed to execute it."

It should be said in justice to the trial judge that his judgment was entered in this case prior to the decision by this court in Hendrickson v. Lyons, supra, and that he followed, apparently, the case of Peterson v. Chaix, 5 Cal. App. 525, 90 Pac. 948. The facts in that case are strangely similar to the facts here involved, except that in that case there was "no allegation or proof of mistake, or invalidity of the contract, or of fraud," while here there are both allegation and proof abundant of mistake, and if it be said that the mistake was not mutual, then the action of the purchaser in concealing his intent to limit the oral agreement might well be held to constitute fraud.

For the reasons given the judgment is reversed, with directions to enter judgment in favor of appellants for $399, with legal interest thereon from the time the cause of action accrued.

Parker, Ch. J., and Fullerton and Main, JJ., concur.

Perhaps most of the cases in which a dispute as to quantity has occurred were cases where the question was whether the parties contracted for a particular number in distinction from

a particular mass or lot. These cases, when decided purely on the construction of the contract, are beyond the scope of this annotation.

Certain kinds of contracts in which

there is an element of uncertainty as to quantity have been considered in former annotations in this series, viz.: The validity and construction of contract for sale of season's output are considered in the annotation in 1 A.L.R. 1392, and in the supplements thereto in 9 A.L.R. 276, and in 23 A.L.R. 574; the construction of contract for sale of commodity to the extent of the buyer's requirements is considered in the annotation in 7 A.L.R. 498, and in the supplement thereto in 27 A.L.R. 127; for the admissibility of parol evidence as to amount of commodity specified in written contract of sale, see the annotation in 8 A.L.R. 747.

Mistakes in contractor's estimates are not included.

This annotation lies in narrow compass. Perhaps the typical case on the subject is the one next cited.

In Wheadon v. Olds (1838) 20 Wend. (N. Y.) 174, the defendant agreed to sell to the plaintiff from 1,600 to 2,000 bushels of oats at so much per bushel; the delivery was commenced by removing them from a storehouse to a canal boat; tallies were kept, and when the tallies amounted to 500 it was purposed to guess at the remainder, and the parties agreed to call the whole quantity 1,900 bushels, and the plaintiff paid for that quantity at the stipulated price. In fact there were only 1,488 bushels delivered, and it was then found that the mistake happened by both parties assuming as the basis of the negotiation fixing the quantity at 1,900 bushels that 500 bushels had been loaded in the boat at the time when they undertook to guess at the residue, whereas in fact only 250 bushels had been then loaded, tallies representing half bushels, and not bushels. The plaintiff brought this action to recover the excess amount paid. It was proved that the plaintiff said that he would take the oats at 1,900 bushels, hit or miss. The judge charged the jury that if they should find that the parties, at the time of the bargain in reference to the 1,900 bushels, were in error as to the quantity measured, and supposed that 500 bushels had been measured, 31 A.L.R.-25.

the

when in fact the quantity measured was only 250 bushels, and had based the bargain upon that supposition, then that the plaintiff was entitled to recover for the deficiency of the 1,900 bushels. The jury found for the plaintiff. On a motion for a new trial, which was denied, the court said, inter alia: "All the excess of payment arose from a count of half bushels as bushels. And the only question in the least open is whether an agreement, based on that mistake, to accept the oats at the plaintiff's own risk of the quantity, shall conclude him. The mistake which entitles to this action is thus stated by the late Chief Justice Savage from the civil law: '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.' Nowatt v. Wright (1828) 1 Wend. (N. Y.) 360, 19 Am. Dec. 508. In judging of its legal effect, we must look 'to the regard which the contractors have had to the fact which appeared to them to be true.' 1 Domat, 250, bk. 1, title 18, § 1, pl. 11. And when we see that the agreement is the result of such a regard, or, as the judge said to the jury, is based upon it, I am not aware of any case or dictum that, because part of the agreement is to take at the party's own risk, or, as the parties expressed it here, 'hit or miss,' it therefore forms an exception to the general rule. The agreement to risk was, pro tanto, annulled by the error. The money was paid under a contract void for so much as the oats fell short of 1,900 bushels. The effect would have been different had the truth been known to the plaintiff. See Domat, as before cited. The foundation of the arrangement to take at the plaintiff's risk was a misreckoning, one number being put instead of another, 'which,' says Domat, pl. 12, 'is a kind of error in fact different from all other errors, in that it is always repaired.'"

In Scott v. Warner (1870) 2 Lans. (N. Y.) 49, which was an action to recover back money paid in excess on the amount of hay sold by the defendant to the plaintiff, the court said in

part: "The negotiation was for a ton of hay, and the price was $8. The defendant was not willing to be at the trouble of weighing it; he represented that 7 feet square by 5 feet in depth would make a ton, and that he knew this fact. The evidence tended to show that such measurement would not make more than half a ton. The plaintiff had no knowledge as to the measurement necessary for a ton. The defendant assumed to know. If he did not know, then he misrepresented. If he had been so informed and so believed, and his representations were founded upon such information and belief, and were not fraudulent, then he was greatly mistaken, and led the plaintiff into mistake. The parties were mutually mistaken as to a material fact. This is the most charitable view of the case. The mistake was serious. The evidence would justify the jury in finding that the defendant [plaintiff] did not get more than half the quantity of hay he supposed he was to have, and which the defendant claimed he was selling to him. Wheadon v. Olds (N. Y.) supra, cited by plaintiff's counsel, is in point."

In Welch V. Moffat (1873) 1 Thomp. & C. (N. Y.) 575, where the plaintiff sold to the defendants "340 bales of broom corn, 81,762 lbs., at 10 cts., $8,176.20. The above constitutes my entire stock of corn now held by me, and all upon the fourth floor of my store, and sold to them as it is, entire, and includes my entire purchase," and the corn was actually 3,514 pounds less than mentioned in the contract, it was held that, the contract being executed, the defendants were bound to accept the corn, but that "the parties were mutually mistaken in their estimate of quantity, and for that reason the defendants are entitled to a deduction for the quantity not capable of delivery."

In Calkins v. Griswold (1877) 11 Hun (N. Y.) 208, where the plaintiffs bought the defendant's crop of grapes at so much per pound, and, in estimating the quantity, there was a mutual mistake, causing an overpayment by the plaintiffs to the de-.

fendant, upon the mistake being discovered, it was held that the plaintiffs were entitled to recover the excess paid.

In Cox v. Prentice (1815) 3 Maule & S. 344, 105 Eng. Reprint, 641, 16 Revised Rep. 288, where defendant received from his principal abroad a bar of silver, and took it to plaintiffs, who melted it, and sent a piece to an assayer, to be assayed at defendant's expense, and paid a price for the bar to defendant, as for the number of ounces of silver which, by the assay, it was calculated to contain, which number was afterwards discovered to exceed the true number, it was held that plaintiffs might, after having offered to return the bar, have an action for money had and received against defendant for the price thus paid to him under a mistake, although defendant had forwarded his account to his principal, and in it had placed the price received to the credit of his principal.

In Paxton Lumber Co. v. Panther Coal Co. (1919) 83 W. Va. 341, 98 S. E. 563, it was held that where a contract of sale specifies the quantity of lumber sold as lumber "to be cut from the manufacturer's timber holdings," the contract is to be construed with reference to such qualifying phrase, and not as importing an absolute quantity irrespective of the designated source from which it is to be obtained; and if it shall thereafter appear impossible to obtain the quantity specified from the manufacturer's holdings because of insufficiency of timber thereon to produce the quantity, and neither party was aware of the insufficiency when he entered into the contract, the impossibility necessarily implies an element of mutual mistake such as excuses performance beyond the timber capacity of the land, that is, to the extent the subject-matter had no potential existence.

But no relief was given in McCrea v. Longstreth (1851) 17 Pa. 316, where the plaintiff, having bought the defendant's farm, later bought certain personal property thereon, including certain crops, some of which were unthreshed. An estimate was made and