Kaiser v. Geis , 52 Okla. 604 ( 1915 )

The plaintiff in error proceeds on the theory that this is an action to cancel a contract, but under the finding of the jury there was no contract to cancel. It is apparent from the plaintiff's evidence that as far as the boar was concerned there never had been a meeting of the minds of the parties. In the light of the finding of the jury, the plaintiff below offered to purchase four hogs fit for market, and was led to believe that the hog in question was a stag which had been castrated and was smooth and marketable. Instead of a hog of this description, the plaintiff in error delivered a boar hog, not fit for market, and which did not correspond with the hog that defendant in error offered to buy. There had therefore never been a meeting of the minds of the contracting parties, as far as this hog was concerned. The contract for the purchase of the four hogs was not, under the evidence, an entire contract. The defendant in error wished to buy fat hogs ready for market, and the plaintiff in error informed him that he had four of this description, one a male. The defendant then agreed to buy the hogs, including the male, provided he had been gelded, and was smooth. The male hog delivered did not meet these requirements, and therefore, as far as he was concerned, there was no contract, and the plaintiff in error having received the purchase price, without fault or negligence on the part of the defendant in error, the defendant in error can recover it in an action for money had and received. In 1 Paige on Contracts, page 127; section 74, it is said:

"A. makes an offer to B. concerning a certain subject-matter, X, and B. understands that A. is making an offer concerning Y, and accepts the offer concerning Y; no contract exists."

And see Hogue v. Mackey, 44 Kan. 277, 24 P. 477. In Lowe v.Wells Fargo Co., 78 Kan. 105, 96 P. 74, it is held that, where money is paid under a mistake of fact, it may be recovered.

Plaintiff in error's requested instruction No. 2, above set out, is fairly covered by the general charge, and there was no error in refusing to give the others.

It is also contended that the verdict is excessive in the amount of $1.33. This fairly comes under the maxim that the law does not concern itself with trifles. In Sullins v. Farmers'Exchange Bank, 17 Okla. 419, 87 P. 857, 10 L. R. A. (N. S.) 839, the amount of interest charged exceeded the maximum allowed by statute by $1, but the court declined to hold the contract usurious. And see Broom's Legal Maxims, p. 118.

We have carefully examined the record and briefs in this case, and are satisfied that there was no prejudicial error.

We therefore recommend that the judgment be affirmed.

By the Court: It is so ordered.