the price carried out opposite each item, which items amounted to the sum of $2,080. At the foot of the estimate there was a receipt for the sum of $1,800 in full for the personal property enumerated above, and stating that the estimated quantities are not guaranteed to be accurate, but the articles are sold for the sum named, "be the quantities more or less than estimated." The plaintiff brought

this action to recover back a portion of the purchase money, upon the ground that the quantities had fallen short from 30 to 40 per cent, and offered evidence intended to show that the land would not produce the quantity contained in the estimates. The trial court refused to permit the plaintiff to go to the jury on the question of fraud or mistake, and ordered judgment of nonsuit against him. This judgment was affirmed on appeal, where the court said, inter alia: "In considering the question of mistake, it is material to bear in mind that the vendor does not stand upon an executory contract, seeking to recover damages in a court of law for nonperformance, or asking the aid of a court of equity to enforce specific execution. The purchase money has been paid and the property has been delivered by the vendor, and accepted and retained by the vendee. The contract has been completely executed, and the vendee is now asking to recover back a portion of the purchase money, upon the ground of a mutual mistake in the estimate of the quantities. And he asks this although the evidence given by him shows that he did not contract upon the basis of the defendant's estimate, but upon one of his own, more favorable to his interest; and shows further that it was part of the express agreement of the parties that 'the quantities were not guaranteed to be accurate,' and that the articles were finally sold for the sum of $1,800 (being less than the sum claimed by the vendor in his estimate), 'be the quantities more or less than estimated.""

It may be noted in this connection that in Barnes v. Early-Foster Co. (1921) Tex. Civ. App. —, 228 S. W.

248, where the plaintiff purchased "about 3,000 bushels of No. 3 red oats in good and even weight bags June shipment at 56 cents f. o. b.

Cars to be loaded as fast as threshed and sacked," it was held that the seller was properly not allowed to show that it was in the minds of the parties when the agreement was made that the defendant was contracting to sell and the plaintiff to pay for only such oats as the defendant harvested, and that, if the true construction of the contract was that the defendant was required to deliver the oats whether produced on his own farm or not, then it was made and based upon mutual mistake of the parties.

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. Mistake in reducing contract to writing.

In HAZARD v. WARNER (reported herewith) ante, 381, it will be seen that the purchaser of hay on a tract of land made two contracts in writing, each for one half of the hay, each reading "250 about tons 1st and 2nd cutting." The hay actually amounted to 557 tons. It is held that the contracts should be reformed according to the oral agreements which preceded them, so that they would be contracts for all the 1st and 2d cuttings. (It may be said that one half of the hay belonged to Pigott and that the other half of it belonged to Hazard and Purnell, and that the rights of the owners of the hay were assigned to Hazard, the plaintiff.)

In Littlefield v. Clayton Bros. (1917) Tex. Civ. App., 194 S. W. 194, where the jury found that the parties, by mutual mistake, omitted from the written contract a part of the quantity contracted for, the contract was corrected in effect.

In Upson Nut Co. v. American Shipbuilding Co. (1918) 251 Fed. 707, where the plaintiff sued the defendant for failure to deliver a part of 8,200 tons of steel scrap bought of it by the plaintiff, the court reformed the contract in accordance with the request of the defendant upon evidence, large

ly in writing, that the actual agreement made with the plaintiff was one for a sale of its then-present accumulation of steel scrap at its Cleveland yards, approximating 4,200 gross tons, and a like sale of its present accumulation of similar material at its Lorain yards, approximating 4,000 gross tons, and that, after this agreement had been made by the parties, plaintiff's bookkeeper, acting as a scrivener, in preparing the two written contracts sued on, through inadvertence or mistake, failed to embody correctly therein the terms of the actual contract, but, instead, through mistake or inadvertence, framed the contracts so as to make them a sale of 4,200 gross tons of steel scrap from the accumulation on hand at the Cleveland yards, and 4,000 gross tons from the accumulation on hand at the Lorain yards.

Where the plaintiff sued to enjoin the defendant from cutting and removing trees and timber, it was held that an answer was proper which stated that there was an agreement authorizing the cutting and removing of all certain timber, but, by inadvertence and mutual mistake of the parties, and a mistake or misunderstanding on the part of the scrivener, the agreement specified only part of the timber bought. Doell v. Schrier (1905) 36 Ind. App. 253, 75 N. E. 600.

Reference may be made in this connection to New York Cent. Iron Works Co. v. United States Radiator Co. (1903) 174 N. Y. 331, 66 N. E. 967, where the defendant contracted to furnish the plaintiff "with their entire radiator needs for the year 1899," and the defense was that the defendant filled all orders from the plaintiff until 48,000 feet of radiation had been delivered, which was as much as the plaintiff had ever required before, but that the plaintiff continued to send in orders that would bring the total for the year up to 100,000 feet. The defendant claimed that there was a mutual mistake in framing the contract, since the intention was to limit the quantity of goods to an amount such as had been called for in previous years of similar dealing between the

parties, and asked that the contract be reformed in this respect, but this defense failed at the trial. The court said, inter alia: "The contention of the learned counsel for the defendant now is that such a limitation was necessarily imported into the contract, and it should be construed as containing it. We think that the contention cannot be sustained. . . . But we do not mean to assert that the plaintiff had the right, under the contract, to order goods to any amount. Both parties in such a contract are bound to carry it out in a reasonable way." Mistakes of inadvertence or negligence.

A party cannot escape from a contract of sale because, through inadvertence or negligence, he has made a mistake therein in quantity.

Alabama. Shrimpton & Son v. Brice (1893) 102 Ala. 655, 15 So. 452. Iowa.-Wilson v. Wyoming Cattle & Invest. Co. (1905) 129 Iowa, 16, 105 N. W. 338.

Kansas.-Cargill Commission Co. v. Mowery (1916) 99 Kan. 389, 161 Pac. 634, 162 Pac. 313.

Kentucky.-Bevins v. Coates & Sons (1906) 29 Ky. L. Rep. 978, 96 S. W. 585.

Mississippi.-Coats v. Bacon (1899) 77 Miss. 320, 27 So. 621.

New Jersey.-Carnegie Steel Co. v. Connelly (1916) 89 N. Y. L. 1, 97 Atl. 774.

Pennsylvania.-Ebstein

v. Philadelphia Knitting Mills Co. (1911) 48 Pa. Super. Ct. 349.

South Carolina.-Coates & Sons v. Early (1896) 46 S. C. 220, 24 S. E. 305. Texas. Shrimpton Mfg. Co. v. Brin (1910) 59 Tex. Civ. App. 352, 125 S. W. 942.

Wisconsin.-J. A. Coates & Sons v. Buck (1896) 93 Wis. 128, 67 N. W. 23. In Wilson v. Wyoming Cattle & Invest. Co. (Iowa) supra, A transferred 10 shares of bank stock and certain money to B, B giving her in exchange a house and lot, and B transferring the bank stock to C in exchange for 10 shares of stock in an investment company. Two years later B called on the investment company to inquire about dividends, and C, alleging that this was the first time

that his attention had been called to it, claimed that he had, by mistake, assigned 10 shares of the investment company stock to B, whereas he intended to transfer only 5 shares, the investment company shares being $200 each and the bank stock being $100 each, and the investment company thereupon refused to transfer on its books to B more than 5 shares. Whereupon B brought the action against the said company and others to compel the transfer to her of the 10 shares of the investment company stock, and recovered in the trial court. On appeal the judgment was affirmed. The appellate court, while convinced. that C had made a mistake in transferring 10 shares instead of 5, held that that could not avail him unless it appeared that the mistake was shared by the plaintiff, or that she knew of it on receiving the stock; and it declined to interfere with the finding of the trial court that the plaintiff did not share in C's mistake.

When the seller, in a contract by telegram, involving a sale of grain, by mistake uses a code word indicating a greater amount than he intended, and, before the knowledge of such mistake comes to the buyer, the buyer has acted upon the contract, such contract is binding according to the terms actually used by the parties; but the seller is entitled to show, if he can, that the buyer knew that it would be impossible to ship within the time limited the quantity of grain indicated by the code word used. Cargill Commission Co. v. Mowery (Kan.) supra.

In Carnegie Steel Co. v. Connelly (N. J.) supra, the defendant ordered from the plaintiff over the telephone steel bars in various items, and, at the plaintiff's request, confirmed the order by letter specifying the number of pieces and respective lengths, which specification made up a total of approximately 50 tons of the bars. After about 10 tons had been received, the defendant telephoned the plaintiff that he had received all that he then needed, and that, if any more were intended to be shipped,

there was a mistake in the order, and that the plaintiff should cancel it. This the plaintiff refused to do, having cut the bars to special lengths in compliance with the defendant's request, and the action was brought for the contract price. The defense was that the defendant in fact had ordered only 10 tons; that his order had been misunderstood over the telephone; and that his letter of confirmation was written under a mistake of fact as to what the order really was. The jury found in favor of the defendant, except as to the bars accepted by him. But the court set aside the verdict, saying in part: "Having declared the provisions of this contract, and thus induced the plaintiff to perform it according to the terms exhibited in this letter, the defendant cannot thereafter set up in a court of justice, as a defense to his breach of it, that the letter was written under a mistaken understanding of what the real contract was, or that it contained statements which he had not intended to make. The law will not permit the introduction of evidence by the defendant to show that information given by him to the plaintiff, and intended as the basis of action by the latter, and which has in fact been acted upon in conformity thereto, was unintentionally untrue, where the object is to throw a loss upon the plaintiff, who has changed his position, relying on the truth of such statement."

A mistake as to quantity will not be relieved against if it is the result of the party's own negligence. Ebstein v. Philadelphia Knitting Mills Co. (Pa.) supra, where, however, the judgment was reversed on another ground.

So, it is no ground for relief that a party orders more pins and needles than he means to. Shrimpton & Son v. Brice (1893) 102 Ala. 655, 15 So. 452; Bevins v. Coates & Sons (1906) 29 Ky. L. Rep. 978, 96 S. W. 585; Coats v. Bacon (1899) 77 Miss. 320, 27 So. 621; Coates & Sons v. Early (1896) 46 S. C. 220, 24 S. E. 305; Shrimpton Mfg. Co. v. Brin (1910) 59 Tex. Civ. App. 352, 125 S. W. 942; J. A. Coates

& Sons v. Buck (1896) 93 Wis. 128, 67 N. W. 23.

It is useless to claim in such a case that the minds of the parties never met. Coats v. Bacon (1899) 77 Miss. 320, 27 So. 621, and Shrimpton Mfg. Co. v. Brin (1910) 59 Tex. Civ. App. 352, 125 S. W. 942, supra.

Mistakes of ignorance.

So, a party cannot escape from a contract of sale because, through ignorance, he has misunderstood the description of the quantity.

In Law Reporting Co. v. Whitaker (1923) Mo. App., 254 S. W. 715, which was an action founded upon a contract to furnish a copy of the official reports of the proceedings before the Federal Electric Railways Commission, there was a dispute as to the meaning of the word "folio" and as to the meaning of the word "reports," and it was held that "the contract must be construed and enforced according to the true meaning of the language used, and may not be adjudged ineffectual because one of the parties to the contract meant or understood the language in a sense different from its true meaning."

It will be seen that in ALLEN v. BISSINGER & Co. (reported herewith) ante, 376, it is held that the defendant, who had ordered from the plaintiff a copy of the reports of certain hearings before the Interstate Commerce Commission, could not avoid liability for the price because the extent of the hearings and the price exceeded his expectations.

It may be noted that in Kellogg v. Norman (1878) 74 N. Y. 596, where the plaintiffs contracted to sell to the defendant about 2,000 tons of oil cake, about 350 tons per month from September, 1875, to February, 1876, both inclusive, being all the oil cake made

at their mill, etc., the defendant re

ceived and paid for about 2,053 tons, but declined to receive about 135 tons manufactured in February. While it was held that the defendant was bound to take and pay for all the oil cake made by plaintiffs for the time agreed upon, in the absence of proof that the power of their mill was unduly urged, and that the quantities specified were merely expressive of expectation or conjecture, and not controlling, the court took occasion to state that, if the difference between the real and represented quantity in such case were very great, it would show a mistake which it would be the duty of a court of equity to correct.

In Singer v. Grand Rapids Match Co. (1902) 117 Ga. 86, 43 S. E. 755, it was held that "if, by reason of ambiguity in the terms of the contract, or some peculiar circumstances attending the transaction, it appears that one of the parties has, without gross fault or laches on his part, made a mistake, that this mistake was known or ought to have been known to the opposite party, and that the mistake can be relieved against without injustice, the court will afford relief, either by refusing to decree specific performance, by cancelation, or by refusing to give damages.”

In Hasty v. Hampton Stave Co. (1906) 80 Ark. 405, 97 S. W. 675, where the contract was one of a sale of staves, the court said: "The contract before us provides for a count of the staves at the place of delivery, but it does not stipulate that the count shall be final, regardless of mistakes. It seems clear to us that, before a party to such transaction can be barred from claiming a correction of mistake, it must be so expressly stipulated in the contract; otherwise the contracting parties will not be deemed to have bound themselves to that extent. It is an elementary principle that if the parties to a contract for the sale of chattels consummate the sale under a mutual mistake as to the quantity delivered, either party, on discovery of the mistake, has the right to a correction." B. B. B.

Banks constitutional right

state.

5. Whether a proceeding by the state to compel a bank to turn over to it deposits which have remained unclaimed for a long period of time is quasi in rem, or strictly in rem, the essentials of jurisdiction over the deposit are that there be a seizure of the res at the commencement of the suit, and reasonable notice and opportunity to be heard.

-sufficiency of seizure of deposit.

6. Sufficient seizure of the res and notice to claimants to protect the bank in a proceeding by the state to compel unclaimed deposits to be turned over to it are effected by providing for personal service of notice on the bank and publication of summons to depositors, and of notice to

-

Constitutional law due process publication of notice locality. 9. That notice to the claimants of a dormant bank deposit, which the state is seeking to compel the bank to turn over to it, is required to be made in the county containing the state capital rather than in that wherein the bank is located, is not so unreasonable that it will fail to constitute due process of law, where the bank has been required to publish in the local paper a statement of the facts relating to the account each year for nine years prior to the time fixed for state proceedings.