Sample v. Bridgforth , 72 Miss. 293 ( 1894 )

Woods, J.,

delivered the opinion of the court.

The appellant complains of no fraud or misrepresentations on appellee’s part. Indeed, appellee made no representations whatever. He sold and appellant purchased the note and deed of trust of Swayze, the one wishing to get clear of it and the other wishing to acquire it. Touching its real worth,- both parties were honestly mistaken. They both mistook an important fact, collateral to their transaction. They thought the note, so Bought and sold, was secured by a first trust-deed on Swayze’s stock, and they were both innocently mistaken. Appellant not only did not rely on statements made by appellee as to the trust-deed (for he made none), but he undertook to settle the value of the trust-deed for himself, before he bought, by an examination of the deed records of the proper county. Unfortunately for him, his examination was imperfect, and the older trust-deed of D. A. Swayze escaped his attention. He acquired exactly what he intended to get, but what he would not have purchased if he had been more fully informed. There was a mistake of fact, on a collateral' point, and this fact was unknown to both parties, and the sources of information were open alike to both. It is well settled that this will not afford ground for a rescission of the contract. IIalls v. Thompson, 1 Smed. & M., 443; Ayres v. Mitchell, 3 Smed. & M., 683, and Wise v. Brooks, 69 Miss., 891.

The contention of appellant’s counsel that the minds of the parties never met, because the proposition to buy made by appellant was accepted conditionally, is without merit. Appellant wrote appellee that he would secure him in $250, payable December 1 thereafter, if he would release his claim or deed of trust on the stock and crop of Swayze and transfer the same to him, if he (appellee) and Swayze could so arrange the business between them that appellee could take appellant’s note for the amount of Swayze’s indebtedness to the appellee. This was done. Swayze complied with certain conditions imposed upon liim by appellee precedent to closing the trade between him and appellant, and appellee transferred the note and trust-deed to appellant. But these conditions in no way touched appellant. They were made by appellee and complied with by Swayze in arranging their business between them preparatory to the transfer of Swayze’s note and the trust-deed by appellee to appellant.

We find no error in any of the rulings of the court below, and the peremptory instruction given for appellee was correct.

Affirmed.